Baum v. Williams

• Decision Date: 08 May 1897
• Citation: 41 S.W. 840
• Parties: BAUM v. WILLIAMS et ux.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

41 S.W. 840

BAUM v. WILLIAMS et ux.¹

Court of Civil Appeals of Texas.

May 8, 1897.

Appeal from district court, Navarro county; Rufus Hardy, Judge.

Suit to recover land by I. Baum against R. Williams and wife. Judgment for defendants. Plaintiff appeals. Affirmed.

J. S. Callicut and Croft & Croft, for appellant. John J. McClellan, for appellees.

FINLEY, J.

On or about October 9, 1894, the appellant, who was plaintiff in the court below, filed his petition against the defendants, R. Williams and his wife, for the recovery of about 205 acres of land near Frost, in Navarro county, Tex., and being a part of the J. H. Blanton and a part of the J. M. Clendenning surveys. On March 3, 1895, the defendants filed their second amended answer, in which they claimed the land as their homestead. Plaintiff filed a supplemental petition afterwards, denying it was a homestead, and setting up that defendants had abandoned same as a homestead in 1890, and moved to Wilbarger county, where they acquired a new homestead on 160 acres of school land, which R. Williams had purchased from the state of Texas under the laws regulating the sale and purchase of school land from the state. This purchase of school land was made on January 4, 1892. The plaintiff also set up the fact that he was an innocent purchaser of said land at execution sale for a valuable consideration, and without any notice of the defendants' pretended homestead claim to said land, etc. June 8, 1896, said cause came on for trial. Defendants took a jury, and the case was tried before the jury, resulting in a verdict and judgment for the defendants for all the land in controversy, except 20 acres, as homestead; and a verdict and judgment for the plaintiff for 20 acres of the land off of the north end of the Clendenning survey, from which judgment the plaintiff has appealed.

There was but one issue of fact involved upon the trial, namely, was the land in controversy, other than the 20 acres recovered, the homestead of the defendants when levied upon and sold? The evidence warranted the conclusion that it was the homestead, and in support of the verdict of the jury we so conclude. The first assignment of error complains of the charge of the court wherein the court instructed the jury that, "If Williams never intended permanently to abandon his Navarro county homestead, and change his residence, and never acquired any other land residence in Wilbarger county * * * with the intention of making such Wilbarger place his home," then the Navarro county place continued to be his home. The particular objection urged against the charge is the use of the expression "permanently" abandoned. There was no dispute in the evidence as to the fact that the property was at one time the homestead of...