Paschal v. Cushman & Co. , 26 Tex. 74 ( 1861 )

Roberts, J.

Appellees brought suit against appellants to

subject their homestead to the payment of a* judgment rendered against the husband. Appellants filed a general denial, which put the appellees upon the proof of their judgment and of other facts stated in the petition necessary to obtain a decree in their favor. The jury, under the direction of the court, rendered a special verdict, which is as follows: “We, the jury, find that the plaintiffs have proven the insolvency of Daniel Richardson and F. L. Paschal. 2d. We put the value of the house and improvements of F. L. Paschal at the sum of thirty-two hundred dollars. 3d. Wé, the jury, value the lot of F. L. Paschal at eight hundred dollars. 4th. We believe that Mrs. Frances Paschal paid the sum of six hundred dollars towards the construction of the homestead.”

This verdict is not sufficient to sustain the decree, inasmuch as the fact is omitted that appellees had recovered a judgment, &c., as alleged in the petition.

The judgment is erroneous upon another ground. Instead of requiring an appraisement, and decreeing to Paschal and wife the appraised value of the lot, and five hundred dollars of the value of the improvements, and the appointment of a trustee for Mrs. Paschal’s interest, &c., the court should have rendered a decree subjecting the lot, with the improvements thereon, to sale, for the payment of the judgment in whole or in part, subject to an allowance out of the proceeds of such sale of two thousand dollars, to Paschal and wife, and of six hundred dollars to Mrs. Frances Paschal, according to the rule laid down by this court in the case of North v. Shearn, 15 Tex. R., 175.

We are of opinion that such is the correct rule in cases wherein the debt has been contracted since the adoption of the State constitution, and previous to the late act of the Legislature, of the 2d of February, 1860, entitled, “ An Act to define the Homestead in a Town or City.” We do not think the rule laid down in this act can control our decision in this case. Such a construction would make it a retroactive law. (§14, Bill of Rights.)

The judgment must be reversed, and the cause remanded for a new trial.

Reversed and remanded