Campbell v. Elliott

Citations

• 52 Tex. 151
• 1879 Tex. LEXIS 124

Syllabus

<p>1. Homestead—Constitutional law.—Under section 22 of article 8 of the Constitution of 1845, forced sales of the homestead were so absolutely prohibited as to render them invalid and ineffectual, in and of themselves, without further act of the parties, to convey any legal right.</p> <p>2. Homestead—Forced sale—Subrogation.—B and his wife C occupied a rural homestead from 1851 to 1861, when the wife died. B continued to occupy it as a homestead, with his grandchildren, until his death, in 1869. In 1858, B executed a mortgage on this homestead, (in which his wife did not join,) to secure a debt due E. On foreclosure, E purchased the homestead at sheriff’s sale, in 1861, before C’s death. D became the purchaser of E’s interest in the homestead at bankrupt sale in 1869. In 1873, the heirs of B and C brought trespass to try title against D to recover the land. D prayed, in the alternative, that, if his title should not be good,-he be subrogated to the rights of E to the amount of his bid at- the foreclosure sale : Held—</p> <p>1. The sale by the sheriff to E, being a forced sale of the homestead, not made to satisfy an incumbrance for purchase-money or other lien existing before the homestead right attached, did not vest in the purchaser a title to the homestead.</p> <p>2. The vendee of E was not entitled to be subrogated to the rights of E to the extent of his bid at the foreclosure sale.</p> <p>3. Quere: Whether, if the laud had ceased to be a homestead, it might still be subjected to the satisfaction of the mortgage in a new proceeding, if the mortgage were not barred by limitation?</p> <p>3. Distinguished.■—This case distinguished from Stewart v. Mackey, 16 Tex., 56; Brewer y. Wall, 2.3 Tex., 385, and Cross v. Evarts, 28 Tex., 523.</p> <p>4. Homestead.—Under the present Constitution, no mortgage, trust deed, or other lien on the homestead can be valid except for purchase-money, whether executed by the husband, or by the husband and wife jointly; and every pretende