Alexander v. Love County Nat. Bank of Marietta

• Decision Date: 26 September 1950
• Docket Number: No. 33840,33840
• Parties: ALEXANDER v. LOVE COUNTY NAT. BANK OF MARIETTA.
• Court: Oklahoma Supreme Court

Page 363

223 P.2d 363

203 Okla. 402

ALEXANDER v. LOVE COUNTY NAT. BANK OF MARIETTA.

No. 33840.

Supreme Court of Oklahoma.

Sept. 26, 1950.

Syllabus by the Court.

1. When homestead character once attaches to land, it continues to be the homestead until the owner voluntarily changes its character, by disposing of the property or by leaving with the intention, or forming such intention after leaving, of not returning and occupying it as a homestead.

2. The intention of a homesteader to return and occupy the homestead after the termination of a removal therefrom is to be gathered not only from his declarations, but also from his actions and the surroundings and environment accompanying his absence.

3. In a case of purely equitable cognizance this court on appeal will review and weigh the evidence, but will not reverse the judgment unless it can be said that it is clearly against the weight thereof.

4. Record examined and judgment found not to be against the clear weight of the evidence.

Champion, Fischl & Champion, Ardmore, for plaintiff in error.

C. C. Wilkins, Marietta, for defendant in error.

JOHNSON, Justice.

This case originated as follows: Plaintiff in error, M. L. Alexander, hereinafter referred to as Alexander, appeals from a judgment holding that he abandoned his homestead and that land composing his homestead had become subject to the lien of a judgment held against him by the defendant in error, Love County National Bank, hereinafter referred to as Bank.

One O. L. Hankins sued Alexander and the Bank to foreclose a mortgage on land other than the homestead and obtained judgment of foreclosure. Bank holding a second mortgage filed its answer and cross-petition upon which it obtained judgment. The mortgaged property was sold, but the proceeds of the sale did not satisfy Hankin's judgment, leaving the Bank's judgment likewise unsatisfied. An execution was issued on the judgment by the Bank in October, 1934, and levied on the lands of the homestead. Alexander then brought suit against the sheriff to enjoin him from selling his lands, alleging that said lands constituted his homestead and was exempt. Judgment was entered in favor of Alexander, finding that the land at that time constituted his homestead and enjoining the sheriff from selling it. No bond for injunction was filed.

In December, 1947, Alexander leased the land for oil and gas, and the money was placed in the Bank. Bank then sued out a garnishment of the money on its judgment. Alexander moved to discharge the garnishment, asserting that the land was his homestead and the money was exempt, and that this matter had been adjudicated and determined in the injunction proceedings, and that the injunction was still in full force and effect. Upon these issues, after trial, judgment was rendered in favor of the Bank holding that Alexander had abandoned the land as his homestead and that the same was subject to execution, levy and sale to satisfy the judgment of the Bank, resulting in this appeal.

The evidence discloses that Alexander acquired the lands now claimed as a homestead about 1915; that he and his family resided on same until 1929 when he rented the farm, stored some house furniture in one room of the dwelling and some other furniture in the barn; that because of his wife's health he took his family to Lubbock, Texas, where they lived for one year; then moved to Clovis, New Mexico, where they have continued to reside, and the boys now own their homes. Alexander has a home in Clovis, contending that his boys bought it for him and his wife in 1944. Alexander's wife died in August, 1946, and was buried in Clovis, New Mexico, and he has continued to live there.

In 1934 Alexander and one of his boys started a grocery and market in Clovis, prospering from the start. The net assets as of December 31, 1947, amounted to $90,000.00; that Alexander's share of the profits for 1947 was $5,739.47. In February, 1945, the real property in which the business is operated was bought, and the deed made to Marion and Mack L. Alexander, for which they paid $16,000.00; that about the time the garnishment herein was issued, Alexander by deed conveyed all his interest in said property to his son Marion, and, also at the same time, conveyed by bill of sale all his interest in the business to his son Marion. These conveyances were without consideration except his son Marion's statement that he orally agreed to support his father the rest of his life; that a part of the terms of said contract was that he would support him in Oklahoma when he returned. In August, 1944, Alexander authorized his agent in Marietta, Oklahoma, to sell the lands involved, but no buyer was found. He stated that he and his wife had often talked about returning to the farm; that they always intended to return, but at the time of the trial had no plans for returning.

In October, 1944, Alexander made and filed an affidavit with the election board at Clovis, New Mexico, stating that he was a resident of New Mexico, had been for a year,...