Willis v. Matthews

Citations

• 46 Tex. 478

Syllabus

<p>1. Gift of land—Equity.—Equity will enforce a verbal gift of land, from a father to his son, when clearly established, if it be accompanied by possession, and followed by improvements made on the strength of the gift, with the consent of the father.</p> <p>2. Judgment—Attachment lien—Homestead.—A judgment, in a proceeding by attachment, enforcing the attachment lien on land, is not conclusive of the defendant’s homestead rights in the land attached, no issue regarding the homestead having been made by the pleadings. The effect of such a judgment is to enforce the attachment lien on whatever interest, subject at the time of the attachment to execution and forced sale, the defendant had in the land : the purpose of an attachment is, to hold the property on which it is levied, so that it may be subjected to execution so far as it is legally liable to execution, and no further.</p> <p>3. Attachment—Pleading.—If the plaintiff in attachment desires to have the question of his homestead right in property attached, settled, in the attachment suit, he should make such amendments to his pleadings as will give the defendant notice that he is called upon to defend his homestead rights, and on principle it would seem that his failure to assert such rights, would be an admission that he had none.</p> <p>4. Homestead.—When a rural homestead is fixed upon a tract of land exceeding two hundred acres in quantity, one undivided half interest in the whole tract being the separate property of the wife, and the other half interest, being in equity the separate property of the husband, the husband’s interest, subject to forced sale at the suit of creditors, is the undivided interest in the whole tract less two hundred acres, protected as the homestead from forced sale. The exemption is of two hundred acres of the land owned by both, and not of two hundred acres owned by the husband.</p>