Birdwell v. Burleson

• Decision Date: 17 December 1902
• Citation: 72 S.W. 446
• Parties: BIRDWELL v. BURLESON et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

72 S.W. 446

BIRDWELL v. BURLESON et al.^*

Court of Civil Appeals of Texas.

December 17, 1902.

Appeal from district court, Hays county; L. W. Moore, Judge.

Action by W. S. Birdwell against D. C. Burleson and others. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

Will G. Barber and P. N. Springer, for appellant. O. T. Brown, for appellees.

STREETMAN, J.

Appellant brought this suit to recover one tract of 20.83 acres of land, and an undivided half interest in a tract of 32¾ acres. Upon trial, without a jury, the district court rendered judgment for appellee.

We find the facts necessary to a decision of the case, as follows: The land in controversy was part of a tract of 236 acres, formerly owned by Martha J. Weir. Mrs. Weir, by her will, gave the 236 acres to her daughter, Louisa Burleson, wife of appellee, for her life, with remainder to her children, in equal shares. Mrs. Louisa Burleson died March 18, 1894, and left surviving her husband (appellee) and eight children, Cornelia, Joseph, Sallie, Martha J., Stephen, Lou, Lizzie, and Mary. Prior to the death of Louisa Burleson, she and her husband and children resided on said tract of 236 acres, using the entire tract as a homestead. After her death, appellee and the children continued to occupy and use the tract in the same manner. In July, 1894, Joseph Burleson died, unmarried, intestate, and without issue, and appellee inherited from him an undivided onesixteenth of said 236 acres. In October, 1894, appellee, with his minor children, moved to the town of Buda, about 2½ miles from the land, for the purpose of sending the children to school. Up to this time all of the interests were undivided, but in 1896 some of the elder children threatened to sue for partition, and appellee caused a partition suit to be instituted in the name of Martha J. Burleson; and on September 23, 1896, a decree was rendered, making partition of the land. It was divided into eight lots or tracts, and allotted to the several owners in the manner shown by the following sketch:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

By this decree, lot No. 8, containing 20.83 acres was set apart to appellee, and he was divested of all right, title, and interest in the remainder of the 236 acres. The dwelling house and all outhouses were situated on lot No. 6, which was set apart to Mary Burleson, the youngest child. Stephen, Lou, Mary, and Lizzie were at that time minors, and their father, D. C. Burleson, continued to rent their parts and his together, and used the rents for the support of the family. On December 28, 1896, Lou Burleson died, unmarried, intestate, and without issue, and appellee inherited from her an undivided half interest in lot 5. Appellee continued to live with the remaining minor children at Buda until the trial of this case. He continued to exercise the control and management of their part of the land, renting it together with his own, and using the rents all alike for the support of the family. It was his intention all the time, when he had finished sending the children to school to return to the farm and live in the house on lot 6, using the other tracts in connection with it as a homestead for the family. If the children should marry, and he could no longer live in the house on lot 6, it was his intention to exchange his part of lot 5 for land adjoining lot 8, and live there. At the time of the partition, parts of lots 5 and 8 were in cultivation. After that no further improvement was made on either lot. The children have never had a guardian of their persons or estates. Appellee never acquired any other homestead. On December 3, 1897, D. M. Reagan obtained a judgment in a justice's court in Hays county against D. C. Burleson for $72. On December 14, 1897, an abstract of said judgment was duly recorded and indexed in Hays county. May 6, 1898, an execution was issued on said judgment, which was levied on lot 8, and an undivided half of lot 5, and on June 7, 1898, said lot 8 and half of lot 5 were regularly sold under said execution to appellant, W. S. Birdwell, for $25, and a proper conveyance of said land was executed and delivered to him by the sheriff.

Upon these facts the district court rendered judgment for appellee. There are no findings of fact or law in the record, but the judgment necessarily involves the finding that both tracts of land were exempt as homestead, and the only question presented on this appeal is whether such finding was warranted by the facts. Appellant contends that whatever homestead rights appellee had in the 236 acres prior to the partition were by that decree limited to the tract allotted to him, and designated as "Lot 8"; and that decree, together with his removal to the town of Buda, operated as an abandonment of all the rest of the tract. He maintains that the undivided half interest in lot No. 5, being acquired afterwards, while appellee was not residing on the tract, and there being no evidence of acts of preparation to use it as a homestead, it never became impressed with the homestead character. As to lot 8, it is insisted that by the decree and the removal of appellee he had divested himself of all interest in lot 6, on which the dwelling was situated, and, as there was no dwelling on lot 8 or lot 5, and appellee did not intend to build a dwelling on either of said lots, his intention to return and occupy the house on lot 6, if permitted to do so, was not sufficient to preserve the homestead character of lot 8. Appellant relies upon the case of Franklin v. Coffee, 18 Tex. 413, 70 Am. Dec. 292, and others, which hold that it is not 200 acres of land belonging to the head of a family which is exempt, but the homestead; and that there must be a homestead over which the Constitution may throw its shield, and not land, merely, upon which the owner may or may not put his cabin, mansion, or improvements. As bearing more particularly on the interest in lot 5, appellant cites the case of Brooks v. Chatham, 57 Tex. 31, and others, which hold that, where land is acquired, a mere intention on the part of the owner is not sufficient to make it his homestead, but that such intention must be evidenced by acts of preparation to use it as a homestead. If we should agree that the facts showed a complete abandonment of lot No. 6, upon which the dwelling and outhouses were situated, so that appellee could have no homestead rights in it, then these questions would become important in the decision of the case. It therefore becomes necessary to determine the nature and extent of appellee's rights, at the time of the levy and sale, in lots 6 and 5. It cannot be doubted that prior to his removal from the premises, and before the partition, he had an undivided interest in the whole 236 acres, and that this was exempt as a homestead (Luhn v. Stone, 65 Tex. 439; Clements v. Lacy, 51 Tex. 639); nor can it be claimed that his removal to the neighboring village to educate his children, with the intention of returning to occupy the place, operated as an abandonment (Thomas v. Williams, 50 Tex. 269; Aultman v. Allen, 12 Tex. Civ. App. 227, 33 S. W. 679). The decree of partition giving him lot 8 as his entire share, and divesting him of all title and interest in the remainder, presents the serious question. After this decree, what were his rights, as far as lots 5 and 6 were concerned? They became the property of his two minor children, who were part of his family, and who had no guardian of their persons or estates. As their father and natural guardian, he took the actual management and control of the premises, rented them out together with his own lot, and used the proceeds as a fund for the support of the family. By his tenants he was thus in actual possession and control of the premises. We do not see that his position was in any respect different from what it would have been had he never removed from the premises, but continued to reside there, and partition had been made during such residence.

The question thus presented has not been decided by the courts of our state, so far as our investigation has discovered. Briefly stated, the question is whether a father, residing with his minor children upon land, the legal title to which is entirely in the children, and managing and controlling such land, and using the proceeds for the support of himself and the family, has such interest in the land as will form the basis of a homestead exemption. It is true that he has no legal title to the land. If some one else were appointed guardian, he could be entirely ousted from the occupancy of the premises. Yet, he is in possession, and his possession is in no wise unlawful or wrongful. On the other hand, it is just what we should expect a father, under the circumstances, to do. He cannot be said to be an intruder or bare trespasser. We think it must be conceded under such circumstances, that he is in actual, peaceable, and lawful possession of the premises. Assuming that he occupies this relation to the property, while there are no decisions of our own state upon the question, the courts of other states have directly passed upon it. The statute of Mississippi exempts from forced sale the homestead "owned and occupied as a residence," not to exceed 80 acres. In the case of King v. Sturges, 56 Miss. 606, the plaintiff in error claimed that a 40-acre tract which had been sold under execution was exempt as a homestead. There was no house on it, but he dwelt in a house built on high land, belonging to the railroad company, immediately adjoining it; and this house is distant from his own line less than 300 yards. This was the condition of affairs when he purchased, and his vendor had built the house, and so occupied it and the land for several years previous to his purchase. He was a man of family, owned no other land than this, and cultivated and derived his subsistence from it. In determining whether it was exempt or not,...