Campbell v. Macmanus

Denison, J.

The facts of this case, as shown by the record, are substantially as follows:

Appellant, a married man, more than eighteen years before the commencement of this suit, purchased lot No. 4 in block No. 54, in the town of Brownsville, built a house thereon, and has occupied the same, with his family, as a homestead from that time up to the present; that for a long time before the commencement of this suit, he inclosed within the same fence the adjoining lot, Ho. 3. These two lots, under one in closure, were, for many years prior and up to the year 1868, occupied by appellant and his family as a homestead. About the middle of the year 1866, appellant bought lot Ho. 3 of Franklin Cummings, the agent of the owner, for $500; and, as it took some time to procure a perfect title, he paid interest up to the time of the delivery to him of the deed, which was about the 5th of July, 1868. On the 6th of October, 1868, lot No. 3 >vas sold by the sheriff of Cameron county, under an execution from the County Court of said county, issued upon a judgment rendered in said court in favor of appellee against appellant. Appellee became the purchaser, and brought suit to the Spring term of the District Court to recover possession of said lot ITo. 3 from the appellant. Upon the trial of the cause verdict and judgment was rendered for appellee. Appellant appeals from said judgment to this court.

Of the instructions given to the jury at the request of plaintiff, and those refused to be given at the request of defendant, are the following, assigned as grounds of error, to wit: Charge Ho. 2, given at the request of plaintiff, and charges Nos. 2 and 8, requested by the defendant and refused Charge No. 2, given by the court, is as follows:

“A lot recently purchased does not thereby become a part of a homestead already designated and used as a homestead.” Charges Hos. 2 and 8, asked by defendant and refused, are:

2. “ If the jury believe from the evidence that the defendant, Campbell, has used and enjoyed, with his family, (he being a married man,) lot Ho. 3 in block Ho. 54, from the time that he became the owner thereof, in connection with lot Ho. 4, in said block, as grounds attached to his family residence, and. that at the time of the levy and of the sale thereof by the sheriff under execution, he and his family so used and enjoyed the same, and that the said lots Hos. 3 and 4 in block Ho. 54, were not worth more than two thousand dollars, then the said lot Ho. 3 was, at the time of such levy and sale, the homestead of defendant and exempt from forced sale.”

8. “A head of family who has already acquired a homestead, can add thereto subsequently by increasing the number of city lots, not to exceed in the whole the value of $2000,” his acts and declarations showing his intentions.

The effect of the charge given at the request of plaintiff, taken together with the charges 2 and 8, refused, was virtually to instruct the jury that a homestead once acquired and occupied can not be increased or added to, even if the addition does not increase the value of the whole property to over $2000. This was manifest error. A homestead of less value than $2000 may be increased in value up to the limit of $2000 by the acquisition of adjoining lot or lots.

The judgment of the court below is reversed and the cause remanded. :

Reversed and remanded.