Article 1328 of Revised Statutes provides that “the verdict of a jury is either a general or a special verdict.” Accordingly the courts have condemned the practice of submitting the general issue or issues together with special issues to the jury. But where the findings upon the special issues support the general verdict and but the one judgment, in drawing from such facts so found the conclusions of law, and upon the general verdict, can be rendered, such irregularity has been held immaterial. (Heflin v. Burns, 8 S. W. R., 48; 70 Texas, 347.)
In this case, the general verdict finding two-thirds of the block in controversy to be the separate property of the wife, and one-third subject to execution as community thereby found against the plaintiffs, upon the issue upon the homestead, The special finding number thirteen is contradictory to the general verdict in finding the block to be homestead.
Disregarding the general verdict, the court entered judgment upon the special verdict. The court, to render a judgment, had to select between these findings. If the verdict be construed to include both the general and the special then the meaning is not evident, nor can it be made certain.
The verdict being contradictory and therefore unintelligible, it can not support the judgment. For this error the judgment will be reversed. (45 Texas, 71, Teary v. Smith.)
It is thought best to notice other questions made in the record with view to another trial. The complaint in the first assignment of error is not sustained by the facts as detailed. It is recognized that “the trust must result, if at all, at the instant the deed is taken and the legal title vests in the grantee.” And accordingly that it should appear that the trust in favor of Mrs. Rogers existed at the time the legal title passed from George to her husband and from the transaction itself. (Parker v. Coop, 60 Texas, 118, citing Perry on Trusts, 133.)
The parol agreement between George and the husband did not affect the title to the land. The money of the wife, with her consent, was applied to taking up the purchase money note for which George deeded the land. Her money was used directly in the acquisition of the land—was invested in it. Under these facts before execution of the deed to the husband *677her equitable estate pro tanto was fixed in the land. As in McCamey v. Thorp, 61 Texas, 650: “By its terms (of the deed) the legal title to the land was placed in the community of herself and husband; but her money having paid for it, a resulting trust was created in her favor and she became the equitable owner of the property.”
The improvements subsequently placed upon the land could not lessen her proportional interest in it. They would follow the land and belong, when fixed upon it, to the owners. The levy and sale would only affect the community interest in the land, of course with right to partition—such partition upon basis of ownership in the land at its acquisition. The creditor could seize and subject to sale the community interest in the land. This did not include the right to an account between the wife and the commuity in order to reach improvements upon her part. Owning the land, she owned the improvements upon it.
In the cross appeal the appellees insist that the judgment should be affirmed, upon the ground that no other proper result could have been reached on the trial upon the facts. It is well settled that a sheriff’s sale of land, if valid, would break the chain of title of the defendant in execution, remaining in or taking possession subsequently to the sale and claiming title under the statute of limitations of three years and against the holder of the title which passed by the sheriff’s sale. (26 Texas, 730, Wright v. Daily; 27 Texas, 248, Harris v. Hardeman; 30 Texas, 411, Elliott v. Whitaker; 59 Texas, 212, Long v. Brenneman; 67 Texas, 99, Paxton v. Meyer.)
Nor does the record present a case showing that the sheriff sale was voidable. There is gross inadequacy of price, but through no fault of the plaintiffs in the execution, so far as disclosed in the record. The defendant in execution was present, forbidding the sale, earnestly proclaiming that the lot was his wife’s separate property and was exempted as homestead— threatening suit against any purchaser. The attorney for the plaintiffs was at the same time assuring the bidders that the sale would pass the title. The sheriff’s return and the deeds for the property by him executed recite the payment of the bids made at the sale. It will not be presumed that the deeds would have been executed by the sheriff before or until the purchase money was paid or adjusted. It has been held: “If the plaintiff becomes the purchaser, the officer ought not to exact pay-*678meat in coin from him when he is clearly entitled to the proceeds of the sale.” (Freeman on Executions, sec. 300, and cases cited.) It would be an idle ceremony if the plaintiff, on buying at a sale for his benefit, should be required to actually hand over to the sheriff the money to be returned at once. The receipt of the plaintiffs acquits the sheriff equally with his bringing into court the proceeds of sale with the execution under which they are made.
For the insufficiency in the verdict the judgment below ies reversed.
Reversed and remanded.
Opinion delivered November 9, 1888.