TRESPASS TO TRY TITLE-CROSS ACTION ON JUDGMENT-PLEADING INDEX OF ABSTRACT - SUFFICIENCY – HOMESTEAD - HUSBAND'S DESIGNATION-INCLUSION OF WIFE'S SEPARATE PROPERTY-EXCLUSION OF ORCHARD

-MORTGAGE-VALIDITY.

1. Plaintiffs (husband and wife) in trespass to try title having attacked the judgment in a former suit in so far as it undertook to foreclose a trust deed on the land in controversy given by the husband, and including such land, and claimed by plaintiffs as a homestead, a cross action in which defendant averred a balance still due him, and that he had caused an abstract of his judgment to be properly recorded, and praying that, if plaintiffs recovered, his judgment lien be foreclosed on other lands described in his plea, was within the rule permitting counterclaims and pleas in reconvention.

2. An averment in an action on a judgment that the abstract thereof was "alphabetically and otherwise duly indexed and cross indexed as required by law in such cases" was sulicient.

3. The homestead character of an orchard intended for family use, and located within a reasonable distance of the family residence, cannot be removed by statutory homestead designation in which it is not included, nor by anything else except abandonment resulting from a permanent change of residence, though there may be another orchard situated as conveniently; it not appearing that both are in excess of family needs and comforts.

4. Where a husband in good faith exercising the power conferred by Rev. St. art. 2403, designates a homestead embracing lands used for homestead purposes, it is binding on both him and his wife, though the designation was made without her knowledge, and included lands belonging to her separate estate, and thereby excluded other and better lands of his own, more advantageously located.

5. Where a mistake was made in designating a homestead, and a shortage is afterwards found to exist, a mortgage made thereafter on the same day to a mortgagee in no wise responsible for the mistake. and covering lands used for homestead purposes, but not included in the designation, will be held valid; and the mortgagor will be required to make up his homestead shortage from other lands belonging to him, which at the time of the designation were unincumbered, partly in cultivation, and impressed with the homestead character.

Appeal from district court, Brown county; J. O. Woodward, Judge.

Trespass to try title by W. C. Anderson and wife against Leon Brin. From a judgment for plaintiffs, defendant appeals. Reversed.

T. C. Wilkinson and G. N. Harrison, for appellant. Goodwin & Grinnan, for appellees.

KEY, J. This is an action of trespass to try title to 64 acres of land; W. C. Anderson and his wife being the plaintiffs, and Leon

Brin the defendant. The plaintiffs prevailed in the court below, and the defendant has appealed.

Among other matters, the plaintiffs alleged in their petition that on March 26, 1896, the land in controversy was their homestead, it being part of 217 acres of land on the William Guyman survey, owned by them; that on the day referred to W. C. Anderson executed a trust deed in favor of the defendant on the 217 acres of land to secure a debt of about $1,500; that on December 3, 1896, in a suit brought against W. C. Anderson, Leon Brin recovered judgment for said debt and a foreclosure of the deed of trust, under which judgment the 217 acres of land were sold, and bought in by Brin. They also alleged that, the 64 acres of land in controversy being part of their homestead, the deed of trust and foreclosure sale were void, and Brin acquired no title thereunder. The defendant, Brin, among other pleas, set up cross action, alleging that there was a balance still owing and due on his judgment against W. C. Anderson; that he caused an abstract of said judgment to be made and recorded as the law directs, in Brown county, where the land in controversy and other lands described in the plea are situated. And he prayed, in the event of the plaintiffs' recovery of the land sued for, that his judgment lien created by recording the abstract be foreclosed on the other lands described in the plea. This plea alleged that the abstract of judgment was "alphabetically and otherwise duly indexed and cross indexed as required by law in such cases."

The ruling of the court in sustaining exceptions to and striking out the defendant's cross action is assigned as error, and we think the assignment is well taken. The plaintiffs by their petition in this case attacked the judgment in the former suit in so far as it undertook to foreclose the lien on the land in controversy; and we think the matters pleaded in the cross action were so connected with and incidental to the judgment referred to, and the averments in the plaintiffs' petition, as bring them within the rule permitting the filing of counterclaims and pleas in reconvention. Clegg v. Varnell, 18 Tex. 294; Carothers v. Thorp, 21 Tex. 361; Jones v. Ford, 60 Tex. 129; Sealf v. Tompkins, 61 Tex. 479. We are also of the opinion that the averments in reference to indexing the abstract were sufficient.

In reference to the homestead question it was shown by the undisputed evidence that at the time he designated his homestead, and before he executed the deed of trust to appellant, W. C. Anderson and his wife owned several connected tracts of land, amounting in the aggregate to 500 acres or more. The following sketch indicates the location and condition of the several tracts at the time referred to:

March 28, 1896, on the same day of, but prior to, the execution of the trust deed under which appellant claims, W. C. Anderson, in the manner prescribed by statute, executed and had recorded a written designation of his homestead, composed of the W. C. Anderson pre-emption, the 282-acre tract, and the 188/10-acre tract. The designation describes the W. C. Anderson pre-emption as containing 1599/10 acres, and, so considering it, the designation includes over 200 acres. W. C. Anderson was then a married man, and resided with his family on his pre-emption survey; his residence, outhouses, well, and an old orchard being on that survey. There was also a field in cultivation on that survey, near his residence, consisting of at least 12 acres. There was a tenant house in the north triangle of that survey, near which there was about 15 acres of land, part of that survey,

in cultivation. The upper part of the north triangle of that survey was fenced off as a pasture, but was in appellees' possession and use at the time. Most of the 70-acre tract on the M. R. Williams survey was in cultivation, and on the 562-acre tract there was at least 12 acres in cultivation. The 188/10-acre tract had a tenant house upon it, and at least 7 acres in cultivation. It was inclosed by a fence, but not included in the inclosure with the other lands. There was at least 12 acres on the 28-acre tract in cultivation. Appellees had one large inclosure, including all of the W. C. Anderson pre-emption, except the small triangle in the south end, and on the southeast side of the public road, which seems to have been fenced off as a pasture, though this is not absolutely certain from the testimony. The large inclosure referred to is indicated by the dotted line, beginning at the

extreme north corner of the W. C. Anderson pre-emption, and extending around to where the public road enters the south line of the 28-acre tract. From there the fence runs with the public road between appellees' residence and the land in controversy, and practically with the east line of the W. C. Anderson pre-emption, to the place of beginning. The Guyman 217-acre tract joins the W. C. Anderson pre-emption on the east. The land in controversy in this suit is part of the Guyman tract, and was at the time in question inclosed as a farm, as indicated by the dotted lines, and all of it, except a few acres, was then in cultivation. On the west end of the 64 acres, and within about 300 feet of his residence, W. C. Anderson had planted another orchard, which the evidence indicates had not reached maturity at the time the homestead designation and trust deed in question were made. The testimony shows that all the cultivated lands on the several tracts had been in cultivation by W. C. Anderson 15 or 20 years, a portion of that in controversy having been put in cultivation first. All of the cultivated lands on the several tracts referred to were used and enjoyed by W. C. Anderson in the same general way (that is, for farm purposes) ever since they were put in cultivation. The land in controversy is more conveniently situated with reference to the residence than most of the other lands designated as homestead, and W. C. Anderson testified that he had always claimed the 64 acres as part of his homestead. It was also shown to be a better class of land than that in cultivation on the other tracts. It was further shown that the W. C. Anderson preemption conflicted with the William Patton, which was an older survey, and that, before the homestead designation was made, the owner of the Patton had brought suit and recovered from W. C. Anderson 24 acres of the pre-emption survey. This apparently cut the homestead designation down to less than 200 acres, but there is some testimony tending to show that the W. C. Anderson pre-emption contained an excess nearly equal to the shortage referred to. As before stated, on the same day that the homestead designation was made, and substantially as part of the same transaction, W. C. Anderson executed a deed of trust to appellant conveying the Guyman 217-acre tract, which includes the land in controversy; and thereafter the deed of trust was foreclosed, and appellant purchased the entire Guyman tract thereunder. This trust deed contained a disclaimer of homestead right in the Guyman survey on the part of W. C. Anderson. It is also proper to state that at the time in question the 70-acre tract on the north end of the M. R. Williams survey and the east half of the M. G. Anderson preemption survey were under mortgage to the First National Bank of Brownwood, which mortgage was afterwards foreclosed, and the bank became the purchaser of these lands. That mortgage, like the one to appellant, was

executed by W. C. Anderson alone, and after the bank purchased at the foreclosure sale it brought suit against W. C. Anderson for the lands referred to. The suit was compromis ed, and an agreed judgment rendered for the bank for the east half of the M. G. Anderson survey and the south half of the 70-acre tract. This judgment was rendered more than a year after the homestead designation and the mortgage under which appellant claims were made. No evidence was submitted tending to show that W. C. Anderson, in designating his homestead, acted otherwise than in good faith, or had any purpose to defraud his wife. It is true that he did not consult her in reference to the designation, and she was ignorant of the fact that it had been made until after this suit was brought, and it may be true that he did not make the wisest selection that could have been made; but there is nothing to indicate that he was influenced by any benefit secured or promised to him individually, and not participated in by his wife, or that he was actuated by any feeling of malice, ill will, or spite towards her. If the selection made was disadvantageous to the wife, it was probably more so to the husband, as it is not likely that she would go to and from the several tracts of land in cultivation as often as he would. The fact that some of the land designated as homestead was separate property of the wife is of no importance. If it was impressed with the homestead character, the husband had the right to designate it as part of the homestead; and his doing so, and thereby excluding the land in controversy from his homestead, would not be a fraud upon her. With the undisputed evidence clearly showing the above facts, we hold with reference to the questions of homestead: (1) That the orchard previously planted on the land in controversy was impressed with that character of homestead right which cannot be removed by statutory homestead designation. nor by anything else except abandonment, resulting from permanent change of residence. An orchard intended for family use, and located within reasonable distance of the family residence, should stand upon the same footing as a garden or cow pen similarly situated and intended for family use. That a garden used for family purposes cannot be abandoned as a homestead while so used was decided in Medlenka v. Downing. 59 Tex. 33. And it makes no difference that there may be another garden or orchard as conveniently situated, and not on the land in controversy; it not appearing that the two are in excess of family needs and comforts. Just how much land the orchard embraces is not disclosed by the testimony, and it is therefore impossible for this court to render the proper judgment in reference thereto. (2) With the exception of this orchard, we hold that the homestead designation having been made in good faith by the husband, and embracing lands used by the

family for homestead purposes, he had the power, under article 2403 of the Revised Statutes, to make the designation, and it is binding upon both the husband and the wife. Affleck v. Wangemann (Tex. Sup.) 55 S. W. 312.

It may be true, after adding the land covered by the orchard, that a shortage will still exist in the homestead designation on account of the loss of the 24 acres resulting from the conflict between the W. C. Anderson pre-emption and the Patton survey, yet it appears that appellees have title by limitation, if not otherwise, to the 56-acre tract on the M. R. Williams survey, which at the time in question was unincumbered, partly in cultivation, and impressed with the homestead character. This being true, and it not appearing that appellant was in any wise responsible for the mistake made in designating as part of the homestead the 24 acres on the W. C. Anderson tract in conflict with the older survey, we think the execution of the mortgage on the land in controversy, except the orchard referred to, should be held valid, and appellees required to make up the homestead shortage, if any, from the 56-acre tract.

The charge of the court on the subject of homestead was not in harmony with the views here expressed. Upon another trial, if the evidence be the same, the court should, without submitting the question to the jury, hold the homestead designation binding upon appellees, except as to the orchard; and, if the evidence defines the boundaries of the latte with sufficient certainty, judgment should be rendered for the plaintiffs therefor, but for no other portion of the land in controversy. For the errors pointed out, the judgment will be reversed and the cause remanded. Reversed and remanded.

STANDLEE et al. v. ST. LOUIS & S. W. RY. CO. OF TEXAS.

(Court of Civil Appeals of Texas. Feb. 13, 1901.)

DEATH-DAMAGES-EVIDENCE-PECUNIARY

LOSS-CHARACTER OF DECEASED.

In an action by a widow and children for damages for alleged negligence causing the husband's death, it was not error to admit evidence of the habits of deceased, tending to show that he was a worthless person, whose services were of little or no value to his family: such evidence being relevant on the question of pecuniary loss.

Appeal from district court, Coryell county; J. E. Walker, Special Judge.

Action by Julia E. Standlee and others against the St. Louis & Southwestern Railway Company of Texas. From a judgment in defendant's favor, plaintiffs appeal. Affirmed.

T. C. Taylor and M. S. Duffie, for appellants. Clark & Bolinger, for appellee.

FISHER, C. J. J. W. Standlee was killed by one of the trains operated on appellee's road, and the appellants, as his surviving widow and children, brought this suit for damages. The appellee answered by general denial, and further to the effect that the deceased was guilty of contributory negligence in placing himself at a point of danger, and sitting and lying down on the track of appellee's road, and that at the time he was in an intoxicated condition. The specific ground of negligence alleged in the plaintiffs' petition as their cause of action consists in averments to the effect that the deceased was run down and struck by the moving train after his peril had been discovered, and at a time sufficient, by the exercise of diligence, to have prevented the collision. The verdict and judgment of the trial court were in favor of the railway company.

There is abundant evidence in the record which warrants the conclusion that the deceased, when struck, was a trespasser upon the track of appellee's line of road, and that he was more or less intoxicated, and that he was, when first seen by the engineer in control of the train, lying down upon, or imme diately adjacent to, the track, at a place that was neither a public nor private crossing; that the engineer, as soon as he discovered that the object on the track was a person, immediately exercised proper diligence by using all the appliances and means usual in such cases in bringing his train under control, in order to stop the same before reaching the deceased, and, after the exercise of proper diligence, he was unable to do so, whereupon the deceased was struck by the passing train and killed.

We think the ruling of the court was proper in admitting the evidence complained of in appellants' first eight assignments of errors. All of this testimony had some bearing upon the amount of pecuniary loss, if any, sustained by the appellants by the death of the deceased. If his habits were such as to indicate that his services were of little value to his family, and that by reason of his habits and conduct he was what might be termed a worthless person, and that, when viewed from a pecuniary standpoint, his existence was a burden upon, instead of a benefit to, his family, these facts ought to be known to the jury, so that they could determine what compensation, if any, the plaintiffs might be entitled to. In cases of this character compensation consists in the pecuniary loss sustained by the parties aggrieved, and any fact which would have a tendency to show and explain the conduct, character, and business of the deceased could, and would doubtless, serve some purpose in arriving at the amount of this compensation. If the conduct and habits of the deceased were of such a character as would show that his earning capacity was seriously impaired or diminished, or that in his selfishness and

indifference to the interests and welfare of his family he squandered and used, in pandering to his own pleasures, all that he earned, those that claim to have been aggrieved by reason of his death could not consistently claim that their loss was as great as if he had been a man of exemplary habits, and who applied his income and earnings to the benefit of his family. We think the charge of the court on the measure of damages, as well as upon the other branches of the case, was sufficient.

As to the questions raised in the eleventh, twelfth, and thirteenth assignments of error, we think it sufficient to say that, in our opinion, the general charge was sufficient upon this subject. It was proper for the court to instruct the jury, as it did, that the deceased was a trespasser. The evidence in the record indisputably established this fact.

There was no error in overruling the motion for a new trial. The grounds stated as to the newly-discovered evidence of the witness Hatch were not sufficient, in our opinion, to authorize the court to grant the motion for a new trial based on that evidence. The evidence was not of a character which, if admitted, was calculated to affect the result. It was not of a character to negative the force of the testimony in the record which shows that the engineer did not discover the peril of the trespasser, and one who by his contributory negligence had placed himself in a position of danger, in time to avoid running him down. We find no error in the record, and the judgment is affirmed. Affirmed.

HOOVER et al. v. KEARBEY. (Court of Civil Appeals of Texas. Jan. 19, 1901.)

APPEAL- ASSIGNMENTS OF ERROR RELIEF
OF APPELLEE AGAINST PARTIES
NOT APPEALING.

1. The appellate court cannot consider assignments of error set forth in appellant's brief, and taken apparently from the motion for new trial.

2. Where defendant fails to perfect a cross appeal, he cannot have affirmative relief against co-plaintiffs with appellants who do not appeal.

Appeal from district court, Erath county; Lee Young, Special Judge.

Action by Byron Hoover and others against Joseph C. Kearbey. From a judg ment for defendant against some of plaintiffs, the latter appeal. Affirmed.

Edward W. Roberts. Thos. B. King, and W. W. Moores, for appellants. Martin & George, D. W. Doom, and D. H. Doom, for appellee.

STEPHENS, J. This suit was brought against the appellee, Joseph C. Kearbey, to recover a tract of land in Erath county, and resulted in a judgment in his favor against all of the plaintiffs except J. D.

Neilson, Mrs. Sallie N. Coleman, and Samuel P. Black, who recovered an undivided onethird of said tract of land, except three acres and one-twentieth of an acre, described in the judgment. From the judgment against them, the plaintiffs, other than J. D. Neilson, Mrs. Sallie N. Coleman, and Samuel P. Black, perfected an appeal to this court, but filed no assignments of error. The brief filed purports to set forth assignments of error taken apparently from the motion for a new trial, but we would not be warranted in considering assignments so made.

The appellee also gave notice of appeal, but, without filing any appeal bond, seeks to have us review the judgment rendered in favor of J. D. Neilson, Mrs. Sallie N. Coleman, and Samuel P. Black, who, as already seen, did not join in the appeal of their co-plaintiffs. We know of no authority for considering appellee's assignments in such case; no appeal having been perfected by him, or by those against whom he seeks relief. The right of an appellee to file cross assignments of error is well settled. Duren V. Railway Co.. 86 Tex. 287, 24 S. W. 258. But where, as in this case, there is no conflict of interests between the plaintiffs in the original action, and some of them recover their proportion of the property sued for, and others do not, and those who are unsuccessful alone appeal from the judgment against them, such appeal does not authorize the defendant, by cross assignments of error, without any appeal from the judgment in favor of the other parties, to have that judgment reviewed. It follows from these conclusions that the judgment appealed from should be affirmed, and that we have no jurisdiction to grant the relief sought by appellee against parties not before the court either as appellants or appellees.

Where a deed conveying certain land described it as part of the H. survey No. 92, but further set out well-defined boundary marks at the corners of the tract, clearly placing its western boundary beyond the true location of the boundary of the H. survey according to the original field notes, it was not insufficient, as a basis for the grantee's claim by adverse possession for five years to a strip of land lying in the W. survey, but within the boundary marks set out in the deed.

Appeal from district court, Comanche county; J. H. McMillan, Special Judge.

Action by E. D. Whitney against Frank Bean for the recovery of certain land. From

a judgment in favor of plaintiff, defendant appeals. Reversed.

J. P. Graham, for appellant. Goodson & Boynton, for appellee.