McCartns cCle ACCULL

v.

CAROLINE NEWMAN ET AL.

(See S. C., 21 Wall., 481-488.)

Homestead right in Texas-adverse estoppel-pleadings in equity.

1. In Texas, an objection to a deed, executed by the husband alone without the wife, that it was void

because the land therein described was a part of the grantor's homestead, cannot prevail unless it be made to appear that such lands were actually used, or manifestly intended to be used, as part of the home of the family. A secret intention of the seller, not made known, cannot affect a purchaser, 2. Adverse possession for ten years is not proved by showing possession from the summer of 1852 to the day of, 1862.

3. Defendants are not estopped from claiming under a deed to their grantor, because such grantor had accepted mortgages on the land to secure his debts, executed by his grantor. 4. A recovery in an equitable action must be had upon the case made by the pleadings or not at all. [No. 26.]

Argued Oct. 16, 1874. Decided Nov. 2, 1874.

Lots 7 and 8 remained unimproved by either Kirchburg or Wahrenberger until the summer of 1852, after the deed of Kirchburg to Wahrenberger. About that time Kirchburg built on lot No. 7 a building used by him for a kitchen, and about the same time another building was erected on lot No. 8, by one Siftgart for Kirchburg.

On June 24, 1856, Gustavus and Catherine Kirchburg executed a trust deed on all their interest in lots numbers 6, 7 and 8 to J. B. Costa, to secure a debt of $435 due Wahrenberger. On March 1, 1860, the above trust and debt being near barred by limitation, G. and C. Kirchburg executed a new deed of trust on lots

ed States for the Western District of Texas.

The bill in this case was filed in the court below by the appellant as heir of Catherine Kirchburg, to cancel deeds of trust and for other relief.

Gustavus and Catherine Kirchburg emigrated to Texas from Philadelphia in 1845 or 1846, and settled in Austin, on lot No. 6, in block 111 of said city, on which they erected a house, shop, etc., and used it as their homestead.

On the 17th of December, 1850, Kirchburg bought lots 7 and 8, in the same block, from the State of Texas, but for some reason he neg; lected to cause a patent for the same to be issued to him.

On the 28th of November, 1851, Gustavus conveyed these two lots (7 and 8) to John Wahrenberger by a deed duly executed, and reciting a consideration of $150. The defendants claim

NOTE.-Parol evidence admissible, to prove an absolute deed a mortgage. Action to have deed declared a mortgage. Where deed is absolute, but is as between the parties a mortgage, a bona fide purchaser protected; but a purchaser with notice stands in place of the equitable mortgagee. See note to Conway v. Alexander, 11 U. S. (7 Cranch), 218; and note to Hughes v. Edwards, 22 U. S. (9 Wheat.), 489.

taken up.

Gustavus died intestate in 1861, leaving no issue. Catherine also died intestate, without issue, in 1862.

line, his widow, became his executrix. Upon John Wahrenberger died in 1864, and Carothe death of the Kirchburgs, Costa's power to sell under the trust deed expired, and the claim secured by said deed was duly established in 6 and such interest as Kirchburg's estate may the probate court and paid, thus releasing block have had in the building on lots 7 and 8, from any and all liens of Wahrenberger.

On February 11, 1869, the patent from the State of Texas to lots 7 and 8 issued to the heirs of Gustavus Kirchburg.

On May 16, 1870, the present bill was filed.

upon bill, answers, replication, proofs and exOn February 6, 1872, the cause was heard hibits, and decree entered in favor of the defendants. The complainants appealed to this

court.

Mr. Geo. W. Paschal, for appellants: The property was cast upon Catherine Kirchburg by the death of her husband.

But the defendants say that because of the

But the property being the homestead of the family, this law is controlled by the Constitution and law governing the homestead.

Chapter, Homestead, Vol. 2, Pasch. Dig. Decis., secs. 14537-14676.

These sections give the statute, or organic law of Texas touching the homestead, and the Texas decisions thereon.

Again; if the deed was valuable for any pur pose, it gave the grantee the right of entry, and having neglected to make entry within ten years, he is forever barred. Pasch. Dig., art. 4621, n. 1030.

Horton v. Crawford, 10 Tex., 388; Scott v. Rhea, 21 Tex., 711; Christy v. Alford, 17 How. 605 (58 U. S., XV., 258).

Messrs. John Hancock, F. P. Cuppy and C. S. West, for appellees:

The proof shows conclusively that lots 7 and 8 were no part of the homestead of Gustavus and Catherine Kirchburg when they were conveyed by the former to Wahrenberger, and that the property being community property and under the sole management of the husband, under the law of Texas. Pasch. Dig., art. 4641, 4642. The deed of Kirchburg to Wahrenberger is valid and binding, and conveyed a full and legal title to Wahrenberger.

We do not suppose that it is necessary to dwell at any length upon the fact of the patent to lots 7 and 8 having issued in 1869 to the heirs of Kirchburg. By virtue of Kirchburg's deed to Wahrenberger, that patent inures to the benetit of his grantee and assignees.

Gould v. West, 32 Tex., 338, and authorities there cited; Lamb v. Davenport (85 U. S., 307, XXI., 759), opinion by Miller, J., U. S. Supreme Court, October Term, 1873, number 19.

Mr. Chief Justice Waite delivered the opinion of the court:

The first objection alleged against the deed which the complainants ask to have canceled is, that it was made for the purpose of conveying a part of the homestead of the Kirchburgs and, as such, was void because the wife did not join with the husband in its execution.

It is admitted that the deed was good, if the lots described in it were not, in fact, a part of the homestead at the time of its execution. It rests upon the complainants, therefore, to prove that they were. To do this it must be made to appear that they were actually used, or manifestly intended to be used as part of the home of the family. This has not been done. The lots were purchased in 1850, but not occupied until 1852. Then a small building was erected upon one of them, and it was thereafter occupied in connection with the family residence. This was after the deed was made and, of course, cannot control its operation. Kirchburg, in a letter written to her sister in Pennsylvania, in June, 1850, says, "We have a lot on Main Street, in Austin, and will buy the adjoining one as a garden," but there is no proof that the intention of connecting this adjoining

Mrs.

affect a purchaser. Unless the purchaser knew, or from the circumstances ought to have known, that the lots were a part of the homestead, he had the right to treat with and purchase from the husband without the concurrence of his wife.

It is next alleged that the Kirchburgs occupied the premises adversely to the grantee for more than ten years after the execution of the deed, and that, therefore, the title under it has failed.

The burden of proving this allegation also rests upon the complainants. It is shown that the occupation of the Kirchburgs was continuous, and probably adverse, from the time of the building of the kitchen upon lot 7 until the death of Mrs. Kirchburg. The kitchen was built in the summer of 1852, and so far as appears from the testimony, the adverse occupation did not commence until then. To create the bar it must have continued until the summer of 1862. Mrs. Kirchburg died in that year, but there is nothing to show at what time in the year. It is several times stated in the bill that she died "on the day of 1862," and the answer, as many times, admits the statement in the same language. No wit ness gives the exact date, but as several were examined by the complainants to show what relatives Mrs. Kirchburg had living in the spring of 1852, it is fair to presume that was the time of her death. But however this may be, as the complainants have failed to prove that she did not die before the summer of that year, this part of their case fails.

It is next insisted in the bill, but not in the argument, that the defendants are estopped from setting up the deed in question by reason of the trust deeds to Costa, executed afterwards by the Kirchburgs at the request of Wahrenberger, to secure the debt due to him, and that, therefore, it should be canceled.

This is in direct conflict with the uniform current of decisions in this court, commencing with Blight v. Rochester, 7 Wheat, 535, and ending with Merryman v. Bourne, 9 Wall., 600 [76 U. S., XIX., 686].

It is next urged in the argument that the deed was given as a mortgage to secure a debt which has been paid.

There is no ailegation in the bill to support this claim. The recovery must be had upon the case made by the pleadings or not at all.

It is unnecessary to consider the effect, under the laws of Texas, of the judgment in the action of trespass instituted by the complainants to try their title to the property.

The decree of the Circuit Court is affirmed.

UNITED STATES, Piff. in Err.,

v.

HENRY BOECKER ET AL.

(See S. C., 21 Wall., 652-659.)

Sureties in distiller's bond-liability of.

Where a distiller gave a bond with sureties, specifying the particular location in a town where he is