Anheuser-Busch Brewing Ass'n v. Smith

• Decision Date: 29 March 1894
• Citation: 26 S.W. 94
• Parties: ANHEUSER-BUSCH BREWING ASS'N v. SMITH.
• Court: Texas Court of Appeals

Page 94

26 S.W. 94

ANHEUSER-BUSCH BREWING ASS'N v. SMITH.

Court of Civil Appeals of Texas.

March 29, 1894.

Appeal from district court, Harris county; S. H. Brashear, Judge.

Action by the Anheuser-Busch Brewing Association against Mary E. Smith to foreclose a mortgage. Judgment for defendant. Plaintiff appeals. Affirmed.

Turner & Barttlingck, for appellant. Kittrell & Allen, for appellee.

WILLIAMS, J.

The only question involved in this appeal is whether or not the house in controversy constituted the homestead of appellee and her husband at the time the husband executed the mortgage upon it under which appellant claims. The house had been built upon a lot which the husband did not own, but held under a lease for three years, for the purpose of a boarding house. The family owned no residence but this, and prior to the execution of the mortgage had lived in it, the wife managing the boarding house. At times, however, they had rented other houses for residences, and the wife had at one time left Houston, and kept another boarding house, upon the line of one of the railways. But she had returned to the house in question before the execution of the mortgage, and was occupying it as her home at that time. We think the court below properly concluded that the house was a homestead. The family resided in it, and had no other home. There was some evidence tending to show that neither husband nor wife intended to make a permanent home of it. Indeed, from its nature, they could scarcely have expected to remain always at that place, unless they should acquire title to the ground on which the house stood. But, having no other residence, their occupation did not depend upon their intentions for the future. The fact of their residence in property in which they had an interest which could be made the subject of the exemption was all that was necessary to give it. Their intention to ultimately acquire another homestead did not affect their right to hold the property in which they actually resided exempt from any lien or debt. Where there is a question as to which of two pieces of property owned by the parties is to be considered the homestead, or as to whether or not property not occupied at the time the adverse claim attaches has been abandoned as a homestead, then their intentions, as manifested by their acts, are decisive. But such is not the case where there is but one place occupied as a residence. The law fixes the exemption upon it. There is, however,...