Rogers' administrator v. Ragland , 42 Tex. 422 ( 1874 )

Reeves, J.

The material facts of this case as developed on the former trial, are indicated in the opinion of the court, reported in 34 Texas, 617, i-eversing the judgment of the District Court, and remanding the case for another trial.

After the trial in the District Court, and before Mrs. Rag-land sued out the writ of error from the judgment which was reversed, the case being certified to the County Court, the administrator, Rogers, applied for and obtained an order from the County Court directing the sale of the lots described as O, P, and "W, and the fractional lot, and other lots not in controversy in this suit. The administrator reported the sale of these lots, to John M. Bro wnson, to the County Court. The sale was confirmed, with an order to make title to Bro wnson. After the decision of the Supreme Court, Mrs. Ragland, in her amended petition, filed in September, 1871, claims these lots as part of the homestead, alleging that the administrator, Rogers, had'obtained the order of sale pending the writ of error in the Supreme Court, and making Bro wnson a party. The defendants pleaded in bar of the plaintiff’s suit the judgments of the District and County Courts and the proceedings in both courts, and other matters not necessary to be noticed. Exceptions were sustained to these defenses, and the cause was 'submitted to the jury with the following result:

“ We, the jury, find for the plaintiff the following lots, lot “ four, block 71, and lots, O, P, and W, and the frac- “ tional lot set forth in the petition, all of which do constitute “ the homestead.” And thereupon the order-of the Probate •Court directing the sale of lots O, P, and W, and the fractional lot, was vacated and set aside, and the sale made in accordance therewith declared null and void, and the lots decreed to the plaintiff: as part of her homestead, awarding the writ of possession, and further ordering that the plaiutiff be confirmed in her title to and possession of lot four in block seventy-one as constituting part of her homestead.

The defendants moved for a new trial on the following-grounds :

1. The verdict is contrary to the evidence.

2. The verdict is contrary to the law.

3. The jury disregarded the instructions of the court.

4. The verdict is not responsive to the issues presented in the case.

5. The jury were misled by a misunderstanding of the instructions of the court.

6. The judgment entered is not authorized by the verdict.

7. The judgment is not authorized by the law.

The motion being overruled both defendants excepted and gave notice of appeal, and assign separate grounds for error in the judgment and proceedings of the court.

Defendant Brownson assigns errors as follows;

1. The court erred in striking out the special matters pleaded by the defendant.

2. The court erred in sustaining the demurrer of the plaintiff to that part of the defendant’s answer which set up the purchase of the property in controversy by the defendant Brown-son, in which he pleaded the several orders and decrees of the Probate and District Courts of Victoria county, in bar of plaintiff’s action for land purchased by Brownson.

3. The court erred in overruling the motion of defendants for a new trial upon the grounds set out in said motion.

G. F. Rogers, administrator of Ragland, assigns as ‘ errors to his prejudice:

1. The court erred in sustaining the exceptions of plaintiff to all of this defendant’s original answer, except the general issue.

2. The court erred in sustaining the exceptions of plaintiff to part of this defendant’s amended answer.

3. In overruling the motion for a new trial.

Under the ruling of the court, the sale of the land to the defendant Brownson, under the order of the County Court, was not presented for the consideration of the jury. The question submitted to the jury was whether the lots, O, P, and W, and the fractional lot, are town-lots or not, and if so whether they Avere used by Dr. Ragland in his lifetime as part of his homestead, and exempt from forced sale.

As the ansAver to these questions is believed to be decisive of the case, it Avill not be necessary to examine the ruling of the court upon the exceptions to the defendant’s ansAvers.

First. Whether the lots O, P, and W, etc., are town-lots or not, in the sense of the Constitution protecting “ any town or “ city lot or lots,” etc., the homestead of a family, from forced sale ?

The Act of February, 1840, incorporating the town of Victoria, provides “ that the bounds or limits of said town, and “ within which the said corporation shall exercise laAvful juris- “ diction, shall include and comprehend the four leagues of “land on which the said toAvn is now situated.” '

This Act recognizes two classes of lots within the limits of the corporation, one called “ town-lots,” and the other “ farm-lots,” and authorizes the corporation to sell said lots, and apply the proceeds of the sales to the purposes pointed out in the Act.

The Act of the Republic of Texas, of December, 1841, confirming the title to the toAvn tract to the corporation of Victoria, refers to the division of the tract into “town and out lots,” and confirms the previous sales made according to that classification. The mayor and board of aldermen of the town, in their records and proceedings, distinguish between “ bnilding- “ lots ” on ..the tract of six hundred and forty acres as set apart for that purpose, and “ out-lots ” or “ farm-lots ” for entry and sale oil the east and west side of the river.

It Avas proved on the trial, that the town of Victoria was laid out in 1834, on the east side of the Guadalupe River, at first embracing only a small area within the four leagues of land granted by the State of Coahuila and Texas, to Martin de Leon, for the foundation of the toAvn. Afterwards, and under the Republic of Texas, the plan of the town proper was extended to its present limits, embracing an area of one-mile square. The streets were laid off running nearly east and west, and north and south, dividing the ground into blocks of one hundred baras square, each block having four lots fifty baras square.

Afterwards, at different times, and outside of the town proper, under the orders of the town council, the lands were surveyed for sale, and laid off into tracts of different sizes, but generally into blocks of one hundred and sixty acres, subdivided into lots of forty acres. In these surveys, streets were laid out but were not sold. The maps accompanying the statement of facts show the sub-divisions of the four leagues and divisions of the town into blocks and lots.

In 1847, Dr. Ragland purchased lot No. 4, in block No. 71, on the mile square, or town proper, as called by the witnesses, and soon afterwards built a dwelling-house, and made other improvements upon it, and took possession and continued to reside upon it with his wife and children, and family servants, until his death, in 1867.

The lands in controversy, described as O, P, and W, and the fractional lot, were not surveyed and offered for sale until after the year 1868, and in that year the town council offered for public sale a large amount of land situated within the limits of the town tract, on the east and west side of the river, in quantities to suit purchasers, describing the land as of the best quality, well timbered, and well adapted for sugar and cotton plantations.

Dr. Ragland’s purchases were made at different times between 1850 and 1855. The map refers to these lots by the letters O, P and W, giving the quantity of each. The deeds describe them by these letters, and as lots or surveys, or as “farm-lots,” amounting in the aggregate to one hundred and fifty-eight acres, and a fraction over, situated on the west side of the river, about one mile and a half from lot 4 in block 71, with farms intervening. That the land in controversy consisted of lots called and recognized by the public authorities and by the community as “ farm-lots,” or terms expressing the same meaning, as distinguished from “ building- “ lots,” or terms of the like import in the town proper, on the mile square, is too clearly established by the evidence to admit of serious doubt. The lots called farm-lots were not connected with the plan of the town proper; the streets of the town were not extended over the farm-lots. The boundary of the six hundred and forty acre tract, the site of the town, was only extended sixty haras, so that there might be no fractional lots, except on the bank of the river, reserving seventy-five varas on each bank within the town tract, for the use of the corporation. This was in 1839.

The survey of the lands in question was platted on the map, but the streets, though reserved from sale, were never opened, as proved on the trial. Though within the jurisdictional limits of the town, they were known and called farm-lots, but were not regarded as town-lots in the sense of this expression, when used in referring to building-lots in the town. Persons-living on the farm-lots said they were going to town when they meant that they were going to the town laid out and built upon the mile square. These lands, when purchased by Dr. Ragland, were mostly covered with dense timber, and were suitable for sugar and cotton plantations, in common with the lands in" the vicinity. The tracts adjoin, and were enclosed and cultivated as a farm, on 'which was planted and raised most of the crops for which the soil was adapted, the cotton and surplus crops being disposed of in the market by Dr. Ragland, as was usual among farmers.

This land was used on the basis of a planting or farming establishment, and was not an appendage of the town residence, and therefore subject to sale as part of Ragland’s estate.

The question we are considering was examined to some extent in the case of Taylor v. Boulware (17 Texas, 79), and the court said: “ The term lot or lots used in. the Constitution, “ must be taken and construed in the popular sense of those “ terms, and when so used, never would be considered as em- “ bracing land within the jurisdictional limits of the corpora- “ tion, not connected with the limits of the city.” We are of opinion, that the plan of the town proper does not extend over the tracts of land in controversy, in such a way as to bring them as lots within the terms town or city lots, as usually understood.

It might well be contended that Dr. Ragland never destinated the lands in question,' or any part of them, as his homestead. It is not shown that he did, or that he had such intention at any time. On the contrary, his brother, N. M. Ragland, proved that Dr. Ragland always regarded lot 4, in block 71, in the town proper, as his residence and home; that he ate and slept there when not absent on business, and that the cooking and washing for the family were done there, and though it was shown by other evidence that he spent much of his time at the farm, both eating and sleeping there, the weight of the testimony establishes that his homestead was on lot No. 4 in the town proper, where he died, and where with his family he had resided for many years before his death. He was a physician of large practice, and as one or more of the witnesses said, relied on his practice as his principal means of support, or at least that he did not permit the farm to interfere with his practice ; his office was on the lot with the dwelling-house, and his patients were directed, to call for him at his home or on the farm. Tested by the rule for ascertaining a homestead, as laid down in Phi Ileo v. Smalley (23 Texas), 498, the claim to the tracts of land as part of the homestead is not sustained by the evidence.

The homestead is the place of residence, and so understood. It can, in no proper sense of the term, be said that Dr. Bag-land’s residence was upon the farm-lands. Though within the jurisdictional limits of the Corporation of Victoria for certain purposes, they were not appurtenant to the town residence for the uses and purposes of a homestead.

It cannot be doubted that Dr. Ragland’s homestead was in the- town proper, on lot 4, in block 71, the place of his actual residence, and that of his family, at the time of his death, and as such was exempt from forced sale during his lifetime, with the like exemption in favor of his widow and children, without change or augmentation for deficiency in value.

We do not concur in the views of the court on the former appeal (34 Texas, 617), in-effect that the widow might abandon the homestead on the death of the husband, aud select a new homestead from the entire estate.

■ Where the husband died without having a homestead, provision was made for an allowance in place of it, hut if there was a homestead, the exemption was for that homestead, and not for another to be selected out of the estate, and set apart to the widow in lieu of it.

We are of opinion that the lands described as O, P, and W, and the fractional lot, formed no part of the homestead at the death of Dr. Ragland, and that his widow has no right to make it her homestead in whole or in part after his death.

The judgment of the District Court is, therefore, reversed and case remanded.

Reversed and remanded.