J. E. and Fannie P. Ferguson v. E. T. Reed, 45 Tex. 574

Moore, Associate Justice.

On the trial, of this case in the District Court, the judge instructed the jury to the effect that if they believed from the evidence that the defendant failed to pay the amount of principal and interest, as stipulated and agreed in the deed of trust, as the first payment for the share in the land, mills, machinery, &c., situated thereon, sold him by Reed, and had not secured the second year’s interest by his note with good and satisfactory security, as also agreed, then the sum of twelve hundred and fifty dollars was due Reed, and the trustee was authorized to sell sufficient of the trust property, selling one sixteenth at a time, to raise that amount.

This instruction is clearly erroneous, and was calculated to mislead the jury to the manifest injury of appellants. It is evident from this, as well as the succeeding portions of the charge, that the court misconceived the true import and purpose of the trust deed. For although it is said in the deed that, if Ferguson shall “ pay each and every of the sums of money, both principal and interest * * * to he by him paid to the said E. T.

Reed at the time the same became due and payable, then the deed shall become null and void,” and it may therefore he well held that the deed ivas intended as a security for the payment of the several sums mentioned in it as interest as well as principal, yet it must he remembered that the annual installments of interest up to 1876 were to be secured at the first of each year by a note with good and satisfactory personal security, while the subsequent interest was not to be secured otherwise than by the deed.

And in providing for the sale of the trust property in case of a default, it is expressly declared that should Ferguson “ fail and refuse to pay the small sums above described, to be paid "by him as principal parts of said sum of $4,000, and to pay the interest aforesaid not otherwise secured, or either of them, or any part thereof, when the same becomes due and payable, or should he fail by note with good personal security to secure the payment of the interest, as he has above agreed to do, then full power and authority is hereby given * * * to sell * * * for the payment of all said sums of money which may then be due and unpaid, or the payment thereof not secured as aforesaid.” Again, when there is a sale, the deed provides that the trustee, after paying all reasonable costs and charges, shall “ pay to the said E.

T. Reed such sums as may then be due and unsecured as aforesaid, and the balance he shall ¡jay upon the principal next to become due.” A careful perusal of the deed shows that it was never contemplated that the trustee should sell for a failure on the part of Ferguson to discharge, when due, the interest notes which were otherwise secured than by the deed.

It follows that not only the instruction of the court in this particular was erroneous, but it must'also b'e held that the sale of at least three sixteenths of the trust property was, at the time ■ the sale was made, wholly unauthorized, and that Reed acquired no right whatever to it by his purchase. The sale of two sixteenths of the property raised more than was needed to pay the amount for which the trustee was then authorized to sell, and his sale of the remaining three sixteenths was in violation of the terms of the deed.

This unauthorized action of the trustee, which has been sanctioned and approved by the court below, requires not only a reversal of the judgment, but will also preclude Reed from all right to relief in this case, unless he may be entitled to it, as the owner, (if the sale was valid to that extent, which we.are not now called upon to decide,) of the two sixteenths of the property, to the sale of which, it seems, Ferguson made no objection. The court also erred in giving judgment for a larger amount of principal than Reed claimed in his petition.

This seems to have occurred by the jury deducting a hundred and thirty dollars and ten cents, as commissions for the trust, from the sum for which the property sold. It was stipulated in the deed that, in case of a sale, the trustee should receive the same fees as are allowed" by law to sheriffs selling property under execution. But there was no evidence that the trustee retained even the commissions to which he was entitled by the deed; and the plaintiff in his petition, as we have said, gave credit for the full amount for which the property was sold. The court also erred in giving judgment against Mrs.

Ferguson for the balance due to Eeed for his interest in the partnership property. It is not shown that she undertook or bound herself in any way for its payment, if, indeed, it was permissible for her to have done so. The objection that the two tracts of land referred to in the trust deed were a part of the homestead of the appellant, and therefore the court could not order their sale for partition, although the plaintiff below might be the owner of an interest in them, is, we think, without force.

If it is conceded that appellants owned the hundred-acre tract, upon which the statement of facts shows they resided when the undivided half of the two tracts upon which the mills are situated was sold by them to Eeed in December, 1866, though it appears that their deed for it, which is the only evidence of title in the record, is of a subsequent date, and that these three tracts Were part and parcel of their homestead; still, we think, it must be admitted that by this deed they vested an interest in the land therein described of which the purchaser cannot be deprived by reason of their pre-existing right in it.

While a homestead, no doubt, may include two’ hundred acres of land, though parts of it may haWe been acquired at different times and from different persons, still the Constitution does not fix or prescribe the number of acres of which it shall consist, or require that it shall always contain the quantity of land which may have been once appropriated to this purpose ; and it cannot he questioned that the owners may sell or otherwise segregate a part of it, if they choose to clo so, provided the consent of the wife is manifested in the manner prescribed by law for the sale or transfer of homestead and separate property of married women.

To doubt this, would be to deny that the whole of a thing includes all its parts, - and to say that a

part is of more importance than the whole. By the deed to Beed, Ferguson, and wife, whatever may be their rights, as between themselves or as to third parties, in respect to the undivided one half which was not conveyed, must be regarded, as to Beed and for the purpose for which said deed was executed, as having voluntarily withdrawn and relinquished their homestead rights to the land described in said deed, and limited their homestead to the one-hundred-acre tract, which they still retained.

The exercise and enjoyment of the rights and privileges conferred upon Beed by the sale to him of an equal undivided half of the land described in the deed, is altogether inconsistent and irreconcilable with its continued use and appropriation by appellants as a homestead. It would operate as a fraud upon him to hold that his title was incumbered with any such limitation and condition.

An absolute right to an undivided half of the land having become vested in Beed, the title which appellants- subsequently acquired by his sale to Ferguson of his interest in the partnership property, was liable for the purchase-money before the homestead rights could reattach to it. Certainly it cannot be objected that security was taken for the payment of the purchase-money by the trust-deed upon five sixteenths of the tract, when by law the vendor could have claimed a lien upon half of it.

The objection that the land is a part of appellant’s homestead resolves itself into the assertion of this broad proposition, that, where there is not more than two hundred acres in the entire tract, if one tenant in • common goes into possession and resides upon the land with his family, it becomes his homestead, and a partition cannot be had at the instance of the other part owners through the court. And especially is this the case when from its nature, the property itself is not susceptible of an actual division.

The constitutional inhibition against the forced sales of homesteads, it is believed, has no application to such a case, and can be given no such unrear sonable and inequitable construction. The right of the occupant, in whatever light we regard it, can only extend, as between the co-tenants, to his part of the land, bio right of homestead can attach to land which he does not own. Certainly it would in effect do so if by reason of Ms homestead claim he could deprive the other co-tenants of the use and enjoyment of their parts of it. The judgment is reversed and the cause remanded. Reversed and remanded.