Opinion
Decided January 17, 1902.
Charge — Requesting Instructions — Appeal.
Where the defects in the charge of the court are such as could be taken advantage of only by requested charges, and none were asked which should have been given, complaint against the charge on appeal is unavailing.
Appeal from Harris. Tried below before Hon. Wm. H. Wilson.
Affirmed.
J.M. Gibson and T.G. Horser, for appellants.
Baker, Botts, Baker Lovett, for appellee.
This suit was brought by the appellee against the appellants on a promissory note for $300, and to foreclose a lien upon certain real estate, evidenced by a deed of trust executed by appellants to secure same. The suit on the note was not resisted, but the foreclosure of the lien was opposed on the ground that the real estate was the homestead of appellants at the date of the execution of the deed of trust and that the instrument was not executed with the requisite formalities, nor for any of the purposes for which a lien could be created against a homestead. A jury trial resulted in a verdict and judgment against Thomas Greenwood for the amount of the note and foreclosure of the lien as against both defendants. From this judgment the parties east have appealed.
The judgment is assailed by complaint against the charge of the court and the contention that the undisputed facts show the premises to have been the homestead of appellants at the date of the execution of the deed of trust. The defects, if any, in the charge of the court are such as could be taken advantage of only by requested charges, and none were asked by appellants which should have been given.
Whether or not the premises were homestead was a question upon which the evidence was conflicting. It was largely a question of credibility of witnesses, and the verdict finds ample support in the evidence. No reversible error is presented and the judgment is affirmed.