Arto v. Maydole

• Court: Texas Supreme Court
• Writing for the Court: BONNER
• Citation: Arto v. Maydole, 54 Tex. 244 (Tex. 1881)
• Decision Date: 25 January 1881
• Docket Number: Case No. 1092.
• Parties: MARY O. ARTO v. H. A. MAYDOLE.

54 Tex. 244

MARY O. ARTO

v.H. A. MAYDOLE.

Case No. 1092.

Supreme Court of Texas.

Jan. 25, 1881.

APPEAL from Harris. Tried below before the Hon James Masterson.

Suit by injunction, by Mary O. Arto, the appellant, against H. A. Maydole, the appellee, praying the judge to enjoin H. A. Maydole from selling as substitute trustee, as he had advertised to do, block forty-four of the S. M. Williams survey, in the city of Houston, under a deed of trust, executed by Susan Arto, on the 12th day of September, 1876, to W. W. Downing, for the use of Beulah Downing, to secure one thousand dollars and interest, loaned to Susan Arto by Beulah Downing. The writ of injunction was prayed for on the grounds that block forty-four was at the time of the execution of the deed of trust, a part of the homestead of Susan Arto, who was at the time the head of a family; and had been the homestead of herself and her deceased husband and of their family, long before; that the plaintiff purchased block forty-four from Susan Arto after the execution of the deed of trust, but after Susan Arto had acquired the right and title of the other heirs to whom block forty-four had been in part partitioned, and that when plaintiff purchased, it was at that time a part of the homestead of Susan Arto, and was used and enjoyed as a part of the homestead of Susan Arto and her family.

The judge granted the injunction, and the petition was filed in the district court of Harris county on the 4th day of May, 1878.

When the case came to be tried on its merits, the appellee, Maydole, in his answer presented two issues:

Maydole denied that block forty-four was ever a part of the homestead of Susan Arto and her husband, and denied that it was a part of the homestead of Susan Arto at the time the deed of trust was executed.

He alleged that the beneficiary in the deed of trust, Beulah Downing, was induced to lend the money by the statements of John Arto, son of Susan Arto, representing himself to be her agent, that his mother, Susan Arto, did not claim block forty-four as a homestead.

The main issue made between the parties was whether, at the time of the execution of the deed of trust, block forty-four was a part of the homestead of Mrs. Susan Arto. Verdict and judgment for Maydole.

The court instructed the jury that the use of a walk for family ingress and egress over the block No. 44, and being the only outlet from the dwelling, would not be sufficient to make the property a part of the homestead, although it was not denied that block forty-four was enclosed and duly separated from the dwelling house by a fence with a gate through it. The evidence showed that there was no street between block forty-four and the mansion house. Block forty-four was used for grazing purposes. The front entrance to the house was reached by way of a raised walk across block forty-four, and by this...