Cummins v. Denton

Quinan, J. The errors assigned are: I. That the court erred in rendering judgment in-favor of the plaintiff and against the defendant.' II. That the judgment of the court is contrary to the law and evidence. We are of opinion that these assignments are not well taken. I. The plaintiffs in their petition set out their title specially. They claim under a sale made by the administratrix of Davis by order of the probate court of Collin of the land in controversy, which formed a part of the tract which before then had been set apart to the widow and children of Davis as a homestead. The probate court had no power to order the sale. The homestead having been set apart to the family was no longer subject to administration in the estate of Davis, and the sale made under its order was a nullity and could confer no title. Harrison v. Oberthier, 40 Tex., 389; Sossaman v. Powell, 21 Tex., 664. II. The appellants insist that the title to the homestead vested in Mrs. Davis and the children, and that her deed as administratrix, as the sale was made by her procurement and she received the money, at least conveyed her interest in the land. This claim of title is not set out in the pleadings and is made for the first time in their brief. Having pleaded their title specially, they are confined to that title and could only recover thereon. Rivers v. Foote, 11 Tex., 662; Turner v. Ferguson, 39 Tex., 508; Custard v. Musgrove, 47 Tex., 219. III. But the setting apart of the homestead did not dis-incumber it of the right of Denton’s heirs, who had acquired an undivided interest in the land prior to the acquisition of any homestead thereon by Davis or his family, to have partition of their interest out of the lands owned by Davis $t the institution of their suit by virtue of his title bond. It is true that the court, having regard to that favor with which the law regards the preservation of the homestead of the family, would require, had it. been asked, that the Denton [185] claim should be satisfied out of the other portion of the land owned by Davis at the institution of Denton’s suit subject to it, without encroaching upon the homestead, if the partition could so equitably be made. But then suit had been instituted and was pending when the probate court set apart the homestead; the administratrix was a party to that suit when the decree was rendered therein; the plaintiffs herein had actual notice of it when they purchased, and the proof shows they “ were told before the purchase that there was not enough land left to satisfy the bond, and that the land they were about to purchase would be required to satisfy it.” It was incumbent on the administratrix, in that suit of Denton’s heirs.against her, if she apprehended that the homestead might be encroached upon in the partition, to show that there were other lands subject to the satisfaction of their claim which could equitably be apportioned to them without an infringement of the rights of the family to their homestead. Upon the coming in of the report of the commissioners it was her duty to make objection, if she was dissatisfied with their acts. And so the plaintiffs here might in that suit have made themselves parties for the protection of any right they had acquired by their purchase at the administration sale, or any equitable interest they might assert as purchasers of Mrs. Davis’ interest, and the payment of the money to her. Clements v. Lacy, 51 Tex., 159; Robinson v. McDonald, 11 Tex., 385; Williams v. Weathered, 37 Tex., 130; Harrison v. Oberthier, 40 Tex., 385. [Opinion delivered May 3, 1880.] IV. But the judgment in the case was regularly rendered, and bound Mrs. Davis and the heirs of William Davis, and all persons claiming under them. Pas. Dig., art. 5696; Briscoe v. Bronaugh, 1 Tex., 326; Wade on Notice, 150, § 346; Pas. Dig., art. 7. We conclude that the judgment be affirmed, and so award. Affirmed.