W. P. Mabry, Adm'r, and Margaret S. Ward v. W. M. Harrison et al., 44 Tex. 286

Gould, Associate Justice. This suit was instituted by appellant, Mrs. M. S. Ward, to enjoin the appellees from selling under deeds of trust from her husband, W. H. Ward, certain lots and improvements in the city of Jefferson, which she claimed to be her homestead and in part her separate property. She made her husband a party defendant, and he dying after the commencement of the suit, appellant Mabry became administrator of his estate, and was made a party defendant. The principal question in the case was the same after Ward’s death that it was before, viz, Did Mrs.

Ward have any rights in the property in the question, either as her homestead or as her separate estate, which entitled her to hold it or a part of it free from the defendants’ liens ? After the death of Ward it does not appear to have been contended by defendants that they could proceed to sell under the deeds of trust, but the- litigation was continued and was still necessary in order to settle the disputed question as to Mrs. Ward’s rights.

In an amended petition , she claimed that at the time of her husband’s death, this, property was actually occupied as a homestead by herself and seven children ; that his estate was insolvent, and asked to have whatever homestead rights she might have therein allotted to her out of this property, claiming that those rights took precedence of defendants’ liens.

The administrator Mabry, in his pleadings, contended that to him as administrator, rather than to a receiver who had been appointed by the court, properly belonged the custody of the property in controversy and the collection of its rents; that all of said property was the property of Ward’s estate, and should be assets in the hands of his administrator; that the plaintiff had received the proceeds of a policy for $10,000 on the life of her husband which properly belonged to his estate, and for which he prayed judgment against her. The defendants also, in their capacity as creditors, claimed that Mrs.

Ward account for the proceeds of the life policy; they asked also for an order for the sale of the property.

On the trial numerous special issues were submitted to the jury, and upon the findings the court entered up a decree dissolving the injunction and directing that the claim of plaintiff to a homestead he disallowed as against the mortgages of defendants, declaring the property subject to said mortgages, and decreeing “that the sale of the mortgaged property and paying out the proceeds of the sale, as well as the rents mortgaged, he remitted into the hands of the administrator.” It was also adjudged that the proceeds of the life policy formed no part of the estate, and that the questions of allowance to Mrst Ward in lieu of a homestead he left to he decided in the administration of the estate.

From this judgment Mrs. Ward and the administrator prosecute separate appeals, which are, however, considered together. They both claim that the court erred in submitting special issues to the jury. It does not appear, however, that any such objection was made or point reserved at the time. The case moreover was a proper one for special issues—the different issues between the various parties seeming to require it. The administrator claims that by the pleadings no issue was presented as to the waiver by defendant Jones of his right to receive rents, and that it was error to fail to submit an issue on chat point.

He should have asked the submission of such an issue at the time, and as it does not appear that he did so, and further, as the evidence would not in our opinion support a finding that there had been such waiver, we think the failure, if an error, becomes unimportant. Mrs. Ward complains of the refusal of the court to submit sundry issues asked on her part. In so far as these issues were at all material they were embraced in those submitted and passed upon. The verdict of the jury negatived any separate interest in Mrs.

Ward in the property, and also negatived her claim that it had been destinated as a homestead prior to execution of the deeds of trust to the defendants. The verdict fixes the actual occupation of the premises by Mrs. Ward as commencing about December 1, 1871, being after the execution of the deeds of trust. In response to the question, “Did Ward and his family occupy the property or any part of it as a home at the date of the death of W. H. Ward? ” the reply is, “ W. H. Ward and family occupied a part of the property as a homestead at the date of the death of W. H.

Ward.” Taken in connection with the question asked and the answers to other issues, it is evident that this response means no more than that at Ward’s death he and family occupied the property as a home. We think that the findings of the jury show that Mrs. Ward had no right to this specific property, either as separate property or as a homestead. At the time her husband incumbered it to the defendants it had not been destinated as a homestead, and it was perfectly competent for him to mortgage it for the purpose of raising money.

Whether, as alleged by defendants, the money was borrowed for the purpose of, and was actually expended in, improving the property is not material. The mortgages and deeds of trust were at all events express liens, and no subsequent occupation of the premises by Ward could give him or his family such a homestead in these specific lots and improvements as would defeat those liens. To give such effect to subsequent occupation would be to violate the obligation of contracts. The proposition is not supported by the cases cited by counsel for the appellant, and it is believed requires no labored refutation.

In Stone v. Darnell, 20 Tex., 11, the lien grew out of the levy of an execution and not from express contract. (Farmer v. Simpson, 6 Tex., 307; Potshuisky v. Krempkan, 26 Tex., 307; White v. Shepperd, 16 Tex., 163.) But it- is claimed that if Mrs. Ward had no homestead in this specific property, she was entitled to have the value of such a homestead out of the assets of the estate exempt from administration, and it is claimed that the court erred in leaving this matter to he decided when the question should arise on the probate side of the docket in the administration of the estate.

Certainly any allowance to which the widow of W. H. Ward may have been entitled out of his estate should be made out of the entire estate, and not wholly charged on the property bound to defendants. The jury found that there were other assets of the estate to a considerable amount, and if the pleadings and prayer of the plaintiff presented any such claim it was properly remitted to the probate side of the court.

It is assigned as error that the court submitted to the jury an issue as to the good faith or fraud of plaintiff in moving into the house, because it is said she was a married woman and moved with her husband. This issue seems to have been unnecessary, and the finding may be disregarded without affecting the validity of the decree.

Another error assigned by the administrator is that the rents of the building were improperly adjudged to defendant Jones, under a clause in his deed of trust assigning to the trustee all sums of money that might accrue from rents of the building, and empowering him to receive and receipt for the same. The deed of trust undoubtedly gave a lien on the rent to Jones, and the decree correctly recognizes and enforces it. That part of the decree adjudging the proceeds of the life policy to Mrs. Ward has not been complained of in the assignment of errors, and is not before us for revision.

It is claimed that the decree should have directed the receiver to account to the administrator. It would seem proper that the receiver should be ordered to settle his accounts with the court whose officer he is. If this has not been done he is subject to the order of the court, and may at any time, on the motion of parties interested, be required to settle his accounts and to pay over any sum in his hands. (Kerr on Receivers, 233.) Our examination of this voluminous record has led us to the conclusion that it shows no error entitling either of the appellants to a reversal. The judgment is accordingly affirmed.

Affirmed. [Justices Moore and Reeves did not sit in this case.]