S. Jacobs, Bernheim & Co. v. J. W. Hawkins et al., 63 Tex. 1

Stayton, Associate Justice. The fact of homestead or not could not be determined by any declaration of opinion made by J. W. Hawkins as a witness, and the court did not err in excluding the answer to a question which called for such opinion. The answer of the defendants J. W. and S. T.

Hawkins did not put in issue the execution of the note or mortgage on which the suit was brought; nor did it in any manner question the sufficiency of the consideration on which they were executed, and the evidence of the witness Harby in this respect was unimportant and would not have tended to establish any fact which the instruments themselves did not establish fully.

The declaration of Hawkins as to the character of the property secured by the mortgage was properly excluded; for if, in fact, the property was homestead, the mere declaration of the husband to the contrary could not make it that which it was not in fact. In cases in which property has not been used as homestead, or is not so used, the declarations of a husband would seem to be admissible for the purpose of showing that there was no intention so to use it as to make it the homestead.

And this would seem to be true, where a place formerly used as homestead is not longer occupied; and so, for the purpose of indicating an intention never again to use it, which, coupled with the act of removal, would amount to an abandonment. But where in fact the property is actually in use for homestead purposes, neither the declaration of the husband or wife, or both, can change its character. Medlenka v. Downing, 59 Tex., 40.

The issue made by the defendants’ answer was, whether the property was occupied and used as homestead at the time the mortgage was given, which the appellants were seeking to foreclose, and not whether they had abandoned it after it had once become a part of the homestead.

The bill of exceptions taken to the action of the court permitting counsel for appellees to open and conclude the argument does not show that the admissions required by rule 31 were not made and properly entered of record, and, in the absence of such a showing, the presumption is that everything was done to entitle the appellees to that right, and that the court below ruled correctly. If we consider only detached portions of the charge given, they might be held objectionable; but a charge cannot be so considered.

The whole charge must be looked to, and, if taken all together, it correctly gives the law applicable to the case, and there be nothing in it calculated to mislead, it is sufficient. The charge given in this case fairly presented to the jury the law upon which, under the evidence, they were directed to determine whether the property in controversy was homestead at the time the mortgage was given, and that was sufficient. It did not exclude from the jury the inquiry as to the intention with which the property was used in connection with the lob on which Hawkins and wife actually resided.

The charges asked by appellants, in so far as they were free from objection, were substantially given in the charge of the court. If it was thought that the use shown was different in regard to the whole and half lot, a charge on that subject which would have directed the jury to consider them separately might properly have been given; but the charge asked, under the evidence, would have been misleading, in that it made some claim other than that evidenced by the use necessary to give to the property the homestead character.

If there be an actual use of property as and for a homestead purpose, although it be detached from the lot on which the residence or mansion house stands, then it is not necessary that some open assertion or claim to it as a part of the homestead be made otherwise than as such claim is evidenced by the use.

Looking to all the evidence, it cannot be said that there was not evidence tending to show with reasonable certainty that the property in controversy was used for homestead purposes, and in such case a judgment cannot be reversed even if this court might be of the opinion that the evidence preponderated somewhat against the verdict. It is assigned as error that the verdict and judgment are not for as much by about $19 as the evidence required; and this seems to be true; but a motion for new trial was filed and acted on, and this ground of error was not made one of the grounds on which the motion was based.

In Hillebrant v. Brewer, 6 Tex., 51, the verdict was excessive, but no motion for new trial based on that fact was made, but, as in this case, it was assigned as error. In disposing of the question it was said: “ The admission of the defendant was sufficient to authorize a verdict for the amount admitted to be due.

But the verdict was for a much larger amount; and the evidence furnishes no data by which that amount could have been arrived at, by any rule or principle of law by which it was competent for the jury to estimate the damages. “ The objection to the verdict in this particular, however, is that it gives excessive damages; and this constitutes a distinct and independent ground for a new trial. But it was not made a ground by any written specification accompanying the motion, as the statute requires. Hart. Dig., art. 766.

It cannot, therefore, be now insisted on as a ground for reversing the judgment.” The same rule applies in all its force where the verdict is not for enough. That a judgment will not be reversed on the ground that the verdict is not in accordance with the evidence, unless there has been a motion for new trial based on that ground, has long been the established rule in this court. Foster v. Smith, 1 Tex., 70; Reynolds v. Williams, 1 Tex., 311; Hart v. Ware, 8 Tex., 115; King v. Gray, 17 Tex., 62; Pyron v. Grinder, 25 Tex. Sup., 159; Cotton v. State, 29 Tex., 186.

The reason for the rule is manifest, and parties must observe it who desire to have questions of this character revised in this court. There is no error in the judgment, and it is affirmed. Affirmed. [Opinion delivered December 12, 1884.]