Radford v. Lyon

Robertson, Associate Justice. In the summer of 1881, the appellees formally executed two deeds of trust, each of which concluded as follows: “We, Wm. A. Lyon and wife, Louisa Lyon, do hereby declare that no part of the land described and conveyed by this deed of trust, constitutes any part of our homestead. That we will not make any claim to any part of the land as our homestead, or the homestead of either of us. We further declare that our homestead consists only and entirely of the land upon which we now reside, at and near Lyons, in Burleson county, Texas, being a balance remaining of one hundred and eighty-one acres of land, more or less, of that [476] tract of three hundred acres conveyed to Wm. A. Lyon by A. W. Mclver and Lafayette Garrett, deed dated February 2, 1872, and recorded in book L, on pages 303, 304 and 305, of the records of deeds of Burleson county, Texas.” In the first of these deeds, the one dated July 13,1881, was included the two small tracts of land in controversy. These two tracts were contiguous to each other, and across the railroad, and about three hundred yards from the tract upon which appellees resided. On the larger of the two small tracts was a mill and gin, used, at and before the execution of the deed of trust, in preparing for use and market the products of appellees’ farms, and also for the service of the public. On the smaller tract was a house usually occupied by appellees’ employes about the mill and gin. This use of the property continued after the execution of the deeds of trust until June 21, 1882, when the premises were let from that date until February 1, 1883, to W. P. Wood, who is not the defendant Wood. It is not contended on this appeal that the land in controversy was not so used before the execution of the deeds of trust, at their dates and afterward, as to support the finding of the jury that it constituted a part of appellees’ homestead, but it is claimed that the declartion contained in the deeds of trust is the authentic destination provided for by statute, and that its effect is to restrict the homestead right to the one hundred and seventy-one (called one hundred and eighty-one) acre tract. R. S., art. 2343. That statute provides that “when the homestead of a family, * * b* is a part of a larger tract or tracts of land than is exempted from forced sale,” the exempt portion, not exceeding two hundred acres, maybe designated. It only applies when the homestead forms part of a larger tract or tracts of land. On appellants’ theory, that appellees’ homestead was confined to the one hundred and seventy-one acre tract, there could be no need of the statutory designation. This law does not authorize the head of the family to contract, but simply to define the homestead. It authorized Lyon to destínate what part of the three tracts embracing together more than two hundred acres, in each of which, by use, the homestead right had entered, should be the particular part exempt from forced sale. The chapter has special reference to execution sales. The husband and wife’s power to encumber, and the husband’s power to alienate, would be practically unrestricted, if he alone, or he and she together, could by registered declarations draw in, even to the door-step, the lines of protection. Indeed, if the homestead could be thus restricted, there is no reason why the first record should not embrace the house that shelters the family, and reserve only the shade [477] of a stunted oak in the part of the land the least desirable to creditors. The statute which would authorize a construction so destructive of a right so long cherished and jealously guarded in Texas jurisprudence, must admit of none other, and it would then encounter a line of constitutional objections. If Lyon,- or Lyon and wife, had made, under this law, a formal delaration that their homestead consisted of only the one hundred and seventy-one acre tract, it would have derived no force from the statute, because the statute does not prescribe this as a means of cutting down the homestead to less than what the uses of the family have embraced in it, but as a means of marking the very lines to which the homestead uses have extended the homestead limits. Without the aid of the statute, the effect of such declaration has already been adjudicated by this court in Medlenka v. Downing, 59 Tex. 37, and other later cases. The charge given correctly stated the law and those requested by appellants were properly refused. The judgment for appellees for the land is complained of in no other particular. The verdict for appellants for improvements we cannot say was too low. If the jury had adhered to what it seems was their purpose in the first informal verdict returned, and denied to appellants the value of their improvements entirely, the finding would have been well sustained by the proof. The testimony leaves it very uncertain what portion of the improvements made by appellants was made by them after they knew of the claims asserted by appellees. One of the defendants stated that the difference between the value of the land as they received it and its value at the date of the institution of the suit was $450, and he testified that the cotton press put on the land was put there after they had notice that their title was contested. If they were entitled to anything for improvements, the amount is too indefinitely proved to authorize us to hold that the jury’s award is too small. The value of the rents assessed by the jury was excessive, but the sum to which the amount is reduced by fhe remittitur is a fair result of the evidence. Counsel for appellee, in the closing speech, may have uttered a few sentences not entirely justified by the record, but they bare mainly on the issue of fraud in the execution of the deeds of trust, and that issue never reached the jury. The trial court is in a better position than we are to detect in the verdict any traces of the influence of the improper speech of counsel, and the rule that injurious results from this source should be prevented, if necessary, by a new trial, is now so well settled by the decisions of this court, that we may assume that [478] the district judge, when he overruled a motion for new trial, has determined that no such results have entered the judgment. We will revise this conclusion, but to reverse it, the case must be a plain one. It may here be remarked that when an exception of this kind is presented, the judge could very appropriately give this court the benefit, in an addendum, to the bill, of any fact or views not otherwise disclosed by the record, supporting his conclusion that the complaining party has suffered no injury from the unauthorized remarks of counsel. The appellees, having recovered the land, were clearly entitled to recover the value of the use and occupation, and the sum for which, after the remittitur, the judgment was entered was.not excessive. The judgment must be affirmed. Affirmed. [Opinion delivered February 16, 1886.]