Paris & Great Northern Railway Co. v. Greiner

COLLABD, Judge, Section A. — The appellants’ first assignment of error is as follows: “The court erred in permitting the plaintiffs (appellees) to introduce evidence, over the objections of appellants, to prove that Greiner and wife used the land in controversy in connection with their homestead and as part thereof as a pasture for their cow and calf; because there was no pleading upon which said evidence was admissible, and no notice given to defendants that such use was relied *448 upon to make the property disconnected with their homestead proper a part thereof. Eeference is here made to bill of exceptions number 1 on this point.” The allegation was, that the land was a part of the homestead, was used as such, and was fenced. If defendants desired a more specific allegation they should have called for it by special exceptions. They could not raise the question by objecting to the testimony. There is an assignment based upon the assumption that the judgment is in favor of Mrs. S. E. Greiner alone, and should be reversed, because the property is community of herself and husband. The record does not sustain the assumed fact. The judgment is for both plaintiffs. It reads: “And the court after hearing the evidence and the argument of counsel, and being fully advised, is of opinion the law and facts are with the plaintiffs, and the said plaintiffs are entitled to recover of the defendants the title and possession of so much of the land sued for in this action as is embraced in and described in the deed from J. F. Greiner to S. J. Wright, and also that embraced in the deed from J. F. Greiner to A. L. McMurry.” Then follows a description of the land, and the judgment proceeds: “It is therefore considered by the court, and it is so ordered, adjudged, and decreed, .that the plaintiff S. E. Greiner, who is joined herein by her husband J. F. Greiner, do have and recover of and from defendants [naming them, the land, etc.], and that plaintiffs have their writ of possession,” etc. Eo comment is necessary. It is insisted by appellants, that there was error in the judgment, because it failed to award compensation for improvements made in good faith, failed to make any disposition of that issue, or to make any legal or equitable decree on the subject, and failed to make any disposition of the defendant Spaulding or of the land claimed by him. The judgment was simply for the plaintiffs for the land sold by Greiner to McMurry and Wright, and made no mention of improvements; but ordinarily such a judgment would pass improvements annexed to the soil. In the conclusions of fact, the court found that the residence homestead and the land in controversy were worth at the time designated as a homestead $600, and that at the time the property in dispute was sold by Greiner it and the lot on which plaintiffs lived were worth about $1250; and also, that “the defendants the railway companies have since the purchase from Wright and Spaulding placed on the land in dispute their track, sidetracks, and other improvements; and the land at this time is worth $2000 per acre.” The court then, as a conclusion of law, decided that the land conveyed by Greiner to Wright and to McMurry was at the date of the deeds part of the homestead of plaintiffs, and that the deeds of Greiner, his wife not joining, passed no title, and that plaintiffs were entitled to recover the same. As before shown, judgment was so entered. *449 The evidence relied on to support the claim of plaintiffs to homestead in the property is not the most convincing, and it is equally as uncertain in showing that Wright and MeMurry had notice of the claim to homestead when they bought, or that they knew facts which would charge them with notice. Love v. Breedlove, 75 Texas, 649. There is no testimony showing that the railway company or Douglas, the trustee, knew anything of the claim at the time of the deed to the latter. At the time of the sales to Wright and MeMurry the condition as to homestead was about as follows: Greiner and wife resided in a house on a lot about 80 by 200 feet. The lot in controversy, about one and a half or one and three-fourths acres, was on a direct line from the house two or three hundred yards away, a barnyard and the lots of other persons intervening, but around by the streets one hundred yards further; all in the limits of the city of Paris. The lot in controversy was fenced, but the fence was in a dilapidated condition, down in several places, and cattle went in and out at will. It was used, up to the time of the sale by Greiner, as a pasture for a cow and calf, or cows and calves. It had not been so .used continuously; in bad weather and in winter the cow and calf were kept in a small inclosure on the house lot, where they were fed. The son of plaintiff, when the pasture was used for such domestic purposes, drove the animals around by the streets and turned them on the lot, which was covered with Bermuda grass. Greiner bought the property with the avowed intention of making it a pasture for the cow and calf, and at once fenced it for such use. Wright and MeMurry both testify, that they did not know of the homestead claim until this suit was brought, but it does not appear that they did not know how the lot was used by the plaintiffs. It is not pretended that it was so used when it was sold to Douglas, trustee of the Paris & Great ¡Northern Bailway Company, but it was in proof, that when the improvements mentioned in the answer were placed on the land plaintiffs had knowledge of the fact, set up no homestead claim, and made no objection. It seems Greiner was gone from home most of the time after he sold the land, but he knew the facts and made no objection. Under these circumstances, had there been no homestead involved, the court should have allowed compensation for the improvements as a charge upon the land, to the extent that the land was enhanced in value by these — not their value for railway purposes. Ordinarily in such case the court would adjust the equities, and in a similar case it was done where the improvements were made on the wife’s separate estate, the court holding that the wife was es-topped. Cole v. Bammel, 62 Texas, 115, on rehearing. The court decided that the property was homestead, and for this reason we presume he allowed nothing for the improvements, because such a judgment would or could result in a forced sale of the land (Rev. Stats., chap. 2, title 96) or a charge upon the homestead, which, under our laws and *450 Constitution, could not be done. IsTor could the court render judgment against Mrs. Greiner personally for the claim. We think, however, that under the pleadings and the evidence the deeds of J. F. Greiner, under whom defendants claimed, having failed and being virtually held for naught, he being allowed to recover the land with his wife, the court should have given judgment for the improvements to the extent of the increased value of the land thereby, against him — a personal judgment. The value of the improvements, or rather their cost, was proved, and there was evidence from which the increased value of the land could have been ascertained. Such a judgment was rendered in a suit by the husband and wife when the suit was to cancel the deed of the husband alone, the land being homestead, defendant setting up improvements made in good faith. The deed was cancelled as homestead, and the judgment against the husband for the value of improvements less the value of the land was affirmed by the Commission of Appeals, whose conclusions were adopted by the Supreme Court of this State. Eberling v. Deutscher Verein, 72 Texas, 340. See, also, Goff v. Jones, 70 Texas, 572, and authorities cited. Such a judgment could not be made a charge upon the homestead. We have not passed upon the right of homestead, and it would not be proper for us to do so at this time. hlo other assignment need be considered. Our conclusion is, that the judgment of the lower court should be reversed and the cause remanded for another trial. Beversed and remanded. Adopted April 26, 1892. A motion for rehearing was refused.