Bell v. Franklin

• Decision Date: 03 March 1921
• Docket Number: (No. 6522.)
• Citation: 230 S.W. 181
• Parties: BELL v. FRANKLIN et al.
• Court: Texas Court of Appeals

230 S.W. 181

BELL v. FRANKLIN et al.

(No. 6522.)

Court of Civil Appeals of Texas. San Antonio.

March 3, 1921.

Rehearing Denied April 13, 1921.

Error from District Court, Williamson County; Ireland Graves, Judge.

Suit by Inez Franklin and others against J. D. Bell and wife. Judgment for plaintiffs, and the defendant Pearl Bell brings error. Reversed and rendered.

F. D. Love and W. H. Nunn, both of Georgetown, for plaintiff in error.

Wilcox & Graves, of Georgetown, for defendants in error.

COBBS, J.

This suit was to recover a personal judgment against J. D. Bell and to foreclose lien securing certain notes executed by him in favor of defendants in error upon 400 acres of land out of the M. Davilla grant, situated in Milam and Williamson counties. The notes sued upon were executed in pursuance of the terms of an agreed judgment against J. D. Bell obtained in the district court of Williamson county between J. D. Bell and the defendants in error herein, his children by a former marriage with their mother, Kate Bell, deceased, which notes were executed by said Bell in pursuance of the terms of a partition settlement embraced in an agreed decree between defendants in error in respect to their claim of community interest between them and said J. D. Bell in their deceased mother's estate, by the terms of which decree there was set apart to defendants in error lot No. 2 and a part of lot No. 1 in the Pietzch First addition to the town of Bartlett, and decreeing a life estate to said J. D. Bell in and to said 400 acres of land in Milam and Williamson counties who surrendered thereby his fee-simple title therein, and to defendants in error decreed the remainder estate, thereby reducing the fee in the property to a mere life estate in J. D. Bell. In this decree it was required that J. D. Bell should execute and deliver to each of his said four children, defendants in error, a note for the sum of $1,500, secured by a lien upon his life estate therein decreed to him in and to said 400 acres of land. Said four notes were duly executed by him to defendants in error. They also sought to recover interest on coupon notes aggregating $757.65 becoming due as interest on prior incumbrance against the said 400 acres of land and taxes thereon aggregating $190, alleged to have been paid by them to protect the estate from foreclosure, to which they claim subrogation to the rights of the original holders, and sought personal judgment against said J. D. Bell with foreclosure against him and his present wife, Pearl Bell, plaintiff in error, on said land.

Pearl Bell, plaintiff in error, was not a party to said decree partitioning said property or to the notes required by the terms of said decree that J. D. Bell should execute, nor has she ever consented thereto or waived her rights against them. Plaintiff in error and J. D. Bell were married in March, 1908, and since February, 1918, have continuously resided together and lived upon said 400-acre tract as their homestead.

Plaintiff in error answered and represented that the said decree of partition was obtained without her knowledge and consent, and was fraudulently procured, and therefore void as against her community interest and homestead rights; the purpose and design being to deprive her of her said homestead and all other rights therein.

Plaintiff in error further represented that the said Bartlett homestead was purchased by J. D. Bell prior to their marriage for $800, and subsequently thereto and after their marriage he spent of their community funds $3,000 in making improvements thereon; that said J. D. Bell moved her from their said home to rented premises in Bartlett prior to said partition decree with the expressed intention on his part to move upon and occupy the said 400 acres as their homestead, but with no purpose on her part to abandon the Bartlett homestead until a new one was acquired.

It was further averred that the 400-acre tract was composed of three separate tracts, viz. 210 acres, 187.9 acres, and 10 acres; that the last two were acquired since his marriage with plaintiff in error, and $2,000 of their community funds expended thereon in improving it; that the 210 acres was purchased by him before their marriage, and $5,000 of their community funds expended in making the improvements thereon.

She prayed that the decree be adjudged void, and that her community rights be established therein, and her homestead right be protected in the 400-acre tract.

J. D. Bell answered, pleading certain offsets and credits on said notes, and prayed, if said decree be set aside on the answer of his said wife, Pearl Bell, plaintiff in error, then the notes be declared without consideration and for judgment against them.

The case was tried by the court without a jury, and personal judgment entered for defendants in error for amount due on the notes sued on, amount paid as interest on the alleged prior incumbrances, and amount paid on the taxes, against J. D. Bell, and foreclosure of the lien on the 400 acres against him and plaintiff in error.

The court made special findings in the judgment, then filed additional separate special findings of fact and conclusions of law. There was also filed a statement of all the facts. Some of the court's findings and conclusions of law are challenged by plaintiffs in error. However, without directly referring to any complaints in respect thereto, specifically made by assignments, we will discuss in this opinion the various propositions of law raised and the facts as shown by the record applicable when necessary, as we understand it.

The first assignment challenges the judgment of the court in holding the decree of partition of the 5th of July, 1917, between Virgie Bell and others and J. D. Bell, as valid against this plaintiff in error, as being an alienation of the homestead right to which she was not a party, and hence void as to her rights.

We are not called upon to pass upon her homestead claim in and to said Bartlett property with the view of reinvesting her therein, as she has abandoned that by her subsequent acts and conduct. If not that, still she has clearly done so by her pleading, and placed her entire claim for homestead on the 400-acre tract.

The evidence is very clear that she did not, however, abandon her homestead claim at or before the decree in and to the Bartlett property, in which she had a clear homestead right until she made or designated her home on the 400-acre tract.

The court found that Kate Bell, his former wife, died intestate June 28, 1906, and on the 30th of March, 1908, he intermarried with plaintiff in error, and at the death of Kate Bell she and J. D. Bell owned community property, including such an interest in the Bartlett homestead; that tracts Nos. 2 and 3 (part of the 400 acres) were purchased after J. D. Bell married with plaintiff in error; that tracts Nos. 1, 2, and 3, composing the 400 acres of farm land, are now used as the homestead of J. D. Bell and plaintiff in error; that at the time of the decree of partition they were living on rented premises in the town of Bartlett, because it was not agreeable to the family for plaintiff in error to remain there with the daughters; that when they went to the rented place it was a temporary move, as it was the intention of J. D. Bell to move on the 400 acres for their homestead. He had not previously lived there, on the 400-acre homestead, though he had built a garage with one room over it which he and plaintiff in error afterward moved into and occupied a few weeks before the house then being completed was finished, which they now live in as a homestead. Prior to this they moved from Bartlett to a house on a Williamson county tract then owned by J. D. Bell, heavily incumbered with debt, and designated as their homestead. It further found that plaintiff in error demanded and requested J. D. Bell to provide her a home, expressing a willingness to live at any home he might provide. They lived on Williamson county farm only a few months, and never really intended to make it their permanent home. Pearl Bell was not a party to the decree.

We think the evidence, in connection with the court's findings, sufficiently establishes the fact that the Bartlett place was continuously claimed as her homestead until it was abandoned by moving to the present home, and that neither intended to abandon the Bartlett homestead as such until her husband secured for them the present homestead. She always expressed a willingness to accept any home he would provide for her, and he always told her it was to be on the 400-acre tract where the court found their homestead now to be. He left the Bartlett homestead with the express intention of making the 400-acre tract their home. It is true he induced her to move with him to the Williamson county tract, where they remained but a short time, as she swore, for the purpose of aiding him in defeating or holding off creditors until he could sell that land, which he did in but a short time. She asked him to make that his homestead when they moved there, but he refused to do that because of heavy incumbrances thereon, still declaring the 400-acre tract was intended to be their home as it was and did become. He had the right to make the home. That right belongs to the husband, but in doing that the law will not permit him to perpetrate a fraud upon his wife to cause the abandonment of the one and the loss of the other.

In the shape of these pleadings and the evidence, the plaintiff in error is entitled to a homestead unless by her acts and conduct she has so placed herself in a position where she can no longer defend against that decree or the lien securing the notes. We think at the time of the decree and the execution of those notes they were void as to her. They had lived on that Bartlett place as their homestead and made valuable improvements thereon, impressing on it in every way the homestead character. Because she and J. D....