This is an action for damages brought by Mattie E. Evans against J. B. Marlow and J. W. Walkup, the latter being sheriff of Wichita county, to recover for a wrongful ejectment from lot 5, in block 119, in the city of Wichita Falls, under a writ of sequestration sued out by J. B. Marlow against plaintiff's husband, N. B. Evans. After hearing the evidence, the trial court instructed a verdict against the plaintiff, and she has appealed.
The facts, briefly stated, are that appellee Marlow had sold the house and lot in question to one W. W. Jackson, retaining the vendor's lien to secure the payment of certain notes amounting to $650. Jackson had sold the same property to N. B. Evans and had taken his notes for $800. Evans was unable to pay the notes which Jackson had given to Marlow, and was also unable to pay the notes which he had given to Jackson. He thereupon entered into a contract with Marlow, by the terms of which he acknowledged tenancy and agreed to surrender possession thereof to Marlow at the end of 30 days in satisfaction of all of said notes. Evans refused to surrender such possession, and Marlow then brought suit against Jackson and Evans and sought and obtained a writ of sequestration, by virtue of which Evans and his wife, this appellant, were ousted from possession of the property. Mrs. Evans was not made formally a party to that suit; nor did she sign the agreement by which her husband agreed to surrender possession of the property. She pleaded in this suit, and the evidence tended to support the allegation, that her separate property entered into the purchase from Jackson, and the property constituted her homestead. The sole question thus presented, of course, is whether or not these facts entitled appellant to a submission of the case to a jury. We think they did not.
It is well settled that the homestead claim is inferior to the vendor's rights to the unpaid purchase money, and that in such a case the husband may, when his act is done in good faith, reconvey the property in satisfaction of the incumbrance, and that such reconveyance will be binding upon the wife. Burford v. Rosenfield, 37 Tex. 42; Speer on Law of Married Women, § 265.
Nor was it necessary, in order to justify the ouster of plaintiff, that she should have been made to a party to the foreclosure suit by Marlow. Her possession was her husband's possession, and was held under him, and the writ against him therefore justified her expulsion from the premises. As said in an ejectment case by the California Supreme Court (Huerstal v. Muir, 64 Cal. 450, 2 P. 33): "Being in possession at the commencement of the action as the wife of the defendant, the presumption is, in the absence of proof of a separate property in her, that she was in possession under her husband; and, being in under him, she must go out with him. The plaintiff cannot enforce his judgment otherwise than against the defendant and his family in possession." Of course, the fact that her separate property entered into the purchase from Jackson could in no manner defeat the prior right of appellee to his suit and writ against her husband. It follows from these conclusions that the court was right, on the undisputed facts, in instructing a verdict as he did.
Judgment affirmed.