E. B. and E. J. Jenkins v. Volz

Citations

• 54 Tex. 636
• 1881 Tex. LEXIS 74

Syllabus

<p>1. Homestead.—The homestead, though situate on laud in which the claimant of homestead rights owns but an undivided interest, is ' protected by the constitution from forced sale.</p> <p>3. Pleading—Homestead.—In a suit to foreclose a mortgage on land, an undivided interest in which is claimed by the defendant, who asserts homestead rights, Ms plea setting up such interest, and stating facts showing Ms inability to designate before partition his homestead boundaries, presents a valid defensé.</p> <p>8. Homestead.— The failure of one asserting homestead rights to designate the homestead boundaries cannot authorize the forced sale of the homestead under judicial process.</p> <p>4 Homestead.— The constitutional protection against forced Sale of two hundred acres as a rural homestead, not only protects the home, when established on land owned jointly with another, but if parti- ' tion with other joint owners should be impracticable, the homestead right would attach to and protect the proceeds of sale made for partition, to the extent of the homestead value.</p> <p>5. Case discussed and distinguished.—Clements v. Lacey, 51 Tex., 150, discussed and distinguished from the present case.</p> <p>6. Practice.— When the holder of a mortgage desires to subject to the payment of Ms debt the interest of the debtor in land, in excess of the homestead right, and there are other joint owners of the land, the better practice is to make the other joint owners parties, for purposes of partition before sale.</p>