Whetstone v. Coffey

Citations

• 48 Tex. 269

Syllabus

<p>1. Practice—Demurrer.—On general demurrer, every reasonable intendment will be indulged in favor of the pleading thus excepted to.</p> <p>2. Homestead—Divorce—Res judicata.—A and his wife B owned, as husband and wife, three hundred and twenty acres of land, acquired during the marriage, on which was established their homestead. A conveyed the entire tract by a deed to which his wife B was not a party, and without her consent; after which he removed from the land with his wife, and separated from her. The parties were afterwards divorced by decree of court, but no judgment was rendered in that proceeding regarding the land. B afterwards sued in trespass the parties in possession under the deed from her former husband: Held—</p> <p>1. That A’s deed conveyed to the purchaser title to all the land over two hundred acres—the amount of the homestead.</p> <p>2. It was not necessary to allege in the petition that the purchaser from the husband had notice of the rights of the wife.</p> <p>3. Though the District Court has authority, upon granting a divorce, to make a partition of the community property, yet, if this is not done, the divorced woman is not precluded from after-wards bringing a suit to recover her interest in the property.</p> <p>4. The fact that the homestead was upon the land at the time of the illegal sale by the husband, shielded and protected the wife’s community interest in the two hundred acres which constituted the homestead.</p> <p>5. The claim of B, in her petition, that she owned the entire three hundred and twenty acres, could not affect her right to recover so much of her community interest as was protected from sale by the homestead exemption.</p> <p>3. Discussed.—Byrne v. Byrne, 3 Tex., 341; Newland v. Holland, 45 Tex., 588; Andrus v. Randon, 34 Tex., 536; Hardin v. Hardin, 38 Tex., 616; Wright v. Wright, 7 Tex., 526.</p>