Newman v. Farquhar

West, Associate Justice. The refusal of the court to give certain instructions, asked by appellant, is assigned as error. Under the facts and circumstances developed on the trial of this case, we are of opinion that the district court did not err in declining to give the instructions asked. The main issue in the case was whether the homestead of the appellee and her husband was in Washington or in Waller county on the 9th of October, 1879, the date of the deed of the husband of the appellee to the appellant, on which this suit was based. The question was not where it had been before that time, but where was-it when the deed was executed. On this subject, the court, after stating the issue of its own motion, charged the jury: That the deed to appellant vested in him the legal title to the land in suit, unless it was, at its date, the homestead of appellee and her husband. He charged the jury, also, that the burden of proof was on appellee to show that the land in suit was, at the date of the deed, her homestead and that of her husband. He also expressly instructed the jury that if they believed that, at the date of the deed of her husband to appellant, the land in suit was not the homestead of himself and wife, then they would find for the appellant. The court also, at the instance of the appellee, defined the homestead of the family to be the usual and habitual place of residence of the husband and wife and family. This, under the facts in evidence, presented the real issue in the case fairly enough for the appellant. He does not complain of any portion of the main charge of the court, or assign as error any of the instructions asked by ap-pellee. While, perhaps, the instructions asked by appellant were not incorrect as abstract propositions, yet they were well calculated to give undue prominence to minor issues in the case and to distract, to some extent, the attention of the jury from the main issue, on the right determination of which the case depended. Hor did the court err in excluding the answer of the witness, Smith, to certain interrogatories propounded to him. The time when the declarations sought to be used were made is not sufficiently disclosed by the record, nor the circumstances under which they were made, nor does it appear that appellee was present. Hor do we think it was error in this case to exclude the evidence of Hew644 man and others as to the husband’s declarations concerning his homestead. When we consider the attitude in which the husband in this case stands to his wife as disclosed by the record, we do not believe his declarations made in her absence, and under such circumstances, should be allowed to prejudice her rights. Smith v. Uzzell, 56 Tex., 318, 319; Gee v. Scott, 48 Tex., 510; Eckhardt v. Schlecht, 29 Tex., 132-135. Here he is charged in the pleadings with fraud and collusion with the appellant, and as acting in hostility to the interests of his wife, and there was much evidence introduced to sustain these averments. In Smith v. Uzzell, above cited, the court says: “ If, however, the husband in fraud of the rights of the wife and without her consent, should seek by an abandonment to withdraw the homestead from the pale of-exemption, he could have no power to do so.” Besides, we are of the opinion that the evidence excluded, in itself, was not of sufficient importance in this case to justify a reversal of the cause on the sole ground of its exclusion, even if the court had in this respect committed an error. The uncontradicted facts show that the appellee’s husband left the home where he and his first wife lived from 1855 up to 1868, when she died. That he married again in 1869, and in 1870 moved to the land in suit, and there lived until the death of his second wife, and continued still to live there until 1874, when he married the appellee; that they continued to live on the land until the date of the deed to appellant, in October, .1879. There is no evidence that the husband ever resided in Waller county from the year 1870 to 1879. The evidence shows that the appellee never at any time lived-in Waller county, but resided with her husband on the land in dispute down to and after the date of his deed to appellant. It was the family residence, wfiere she and her husband permanently and habitually resided, as man and wife, and where her child was born. It was also proved that appellee was never consulted as to the sale to appellant, and knew nothing of it when the sale was made. The proof was also uncontradicted to the effect that when appellee’s husband moved from Waller county, which was before he married her, he turned his Waller county home over to his married daughters and their husbands, and established himself in Washington county on the land in suit. It is also in evidence, that during the year 1880 (whether before or since this suit was brought the record does not show), appel [645] Ice’s husband had divided and partitioned among his grown chidren his old home in Waller county. The record shows that the appellant sustained such relation to the parties and those connected with them as to charge him with notice of the true state of affairs, nor does he pretend ignorance of the facts. We are of the opinion that the conclusions arrived at by the jury were well warranted by the evidence. The justice of the case has been reached, and we find no such error in the record as would authorize us to disturb their verdict. The judgment is affirmed. Affirmed. [Opinion delivered January 25, 1884.]