Blanks v. First Nat. Bank of Seymour, 913.

• Decision Date: 20 November 1931
• Docket Number: No. 913.,913.
• Citation: 44 S.W.2d 393
• Parties: BLANKS et al. v. FIRST NAT. BANK OF SEYMOUR et al.
• Court: Texas Court of Appeals

Page 393

44 S.W.2d 393

BLANKS et al. v. FIRST NAT. BANK OF SEYMOUR et al.

No. 913.

Court of Civil Appeals of Texas. Eastland.

November 20, 1931.

Rehearing Denied December 18, 1931.

Appeal from District Court, Baylor County; Isaac O. Newton, Judge.

Suits by the First National Bank of Seymour, by the Farmers' National Bank of Seymour, and by Mrs. M. Bransford and another, against A. J. Blanks and others. The suits were consolidated by agreement of parties and tried as one cause. From an adverse judgment in the consolidated cause, defendants appeal.

Affirmed in part, and reversed and remanded in part.

J. A. Wheat, of Seymour, and Taylor, Muse & Taylor, of Wichita Falls, for appellants.

Dickson & Dickson, of Seymour, and Carrigan, King & Surles, of Wichita Falls, for appellees.

HICKMAN, C. J.

Three suits in the lower court were consolidated by agreement of parties and tried as one cause, and the appeal is from a judgment in the consolidated cause. The plaintiffs below were respectively the First National Bank of Seymour, the Farmers' National Bank of Seymour, and Mrs. M. Bransford and James Bransford. The latter two were joint plaintiffs in the same cause, and each of the two banks filed a separate suit. All of the suits were upon promissory notes signed by A. J. Blanks, and the defendants in each case were A. J. Blanks and his son, J. A. Blanks, who were alleged to be partners, doing business under the name of A. J. Blanks & Son. Joann Blanks, infant daughter of J. A. Blanks, was made a party defendant for reasons hereinafter disclosed. In each case writs of attachment were sued out and levied on two tracts of land in Grayson county, and a tract of 365 acres in Baylor county. Prior to the institution of the several suits, the appellee, A. J. Blanks, conveyed the two tracts in Grayson county, one to his son, J. A. Blanks, and the other to his granddaughter, Joann Blanks. These conveyances were attacked by each of the plaintiffs as being made for the purpose of defrauding the creditors of A. J. Blanks. The consolidated cause was tried before the court and jury. In answer to special issues, the jury found that the conveyances were made in fraud of the rights of appellees, and such conveyances were set aside and held for naught. Upon a finding that no partnership relation existed between A. J. Blanks and J. A. Blanks, no money judgment was rendered against the latter. The judgment appealed from, in addition to setting aside the conveyances above mentioned, was a personal money judgment in favor of each of the appellees against appellant A. J. Blanks for principal, interest, and attorneys' fees on the several respective notes declared upon, together with a foreclosure of the respective attachment liens upon the two tracts of land in Grayson county, and the tract in Baylor county. Prior to the trial, appellant A. J. Blanks designated a particular 200-acre tract out of the Baylor county land as a homestead, and sought to defeat a foreclosure of the various attachment liens as to this particular tract on the ground that same constituted the homestead of himself and family. The court refused to submit this issue, but peremptorily instructed the jury that said tract was not exempt to said appellant under the Constitution and laws of this state. The jury returned its verdict on that issue as directed, and judgment was rendered accordingly.

No question is presented to this court as to the correctness of the judgment below in any particular except as to the homestead issue, and the only question presented for our decision is whether the trial court was justified, under the evidence, in withdrawing that issue from the jury. The only appellant who presents assignments is A. J. Blanks, and he will be referred to as appellant. Of course, it is elementary that, in determining this question, we must consider the evidence in the light most favorable to appellant. The facts with reference to this matter are:

A. J. Blanks and wife acquired this Baylor county land about the year 1900, and lived thereon until the year 1905. They impressed 200 acres thereof with the homestead character by their use and occupancy during that period. In 1905, when their son Joe (J. A. Blanks) was eight years old, they purchased a house and some lots in the town of Seymour and moved thereto. Proper school facilities were not available near their farm, and their intention in moving to Seymour was to send Joe to school. After moving to town, Blanks engaged in the dray business from 1905 to 1920. Joe went to school for about ten years, and then assisted his father in the dray business. During 1920 Blanks sold the house and lots which he owned in Seymour and also sold his dray business. At about the same time a house and some more lots in another portion of the town of Seymour were acquired; deed to three of the vacant lots being taken in Blanks' name, and deed to the other three lots, upon which a house was situated, being taken in the son's name. Blanks, with his wife and son, moved into the house acquired by the son, and Blanks and wife continued to live in this house down to the day of the trial. The son lived with his father and mother as a single man until his marriage in 1925, when he acquired another home and moved thereto. After the dray business was sold out in 1920, Blanks engaged in the ice business for two years. His son was associated with him in some manner in this business. After disposing of the ice business, Blanks engaged in the grain and feed business up until a few months before the trial, when financial troubles brought about its closing. The son was also associated with his father in this business, but the jury found that their relationship was not that of partners. The various items of indebtedness made the bases of this consolidated suit were incurred over a period of several years while engaged in the grain and feed business. These items of indebtedness started in small amounts, and grew through the years with frequent renewals. A short time before the institution of the suits, Blanks made application to the John Hancock Mutual Life Insurance Company for a loan upon the 365-acre tract of land, in which he declared that said land was not his homestead, and that his homestead was "Lots 3 to 6, Block 19, Morris Addition to the town of Seymour, Baylor County, Texas."

Various financial statements were introduced in evidence alleged to have been made by Blanks to R. G. Dun & Co. and to the appellee banks for the purpose of obtaining credit. These statements will be noticed more particularly hereinafter.

There is considerable testimony in the record concerning acts performed and improvements made on the farm during the years by Blanks in the nature of building fences and windmills and reconstructing the house, and there is evidence of declarations made by him to his tenants and others that he was making these improvements to get the farm in readiness for him and his wife to occupy when they returned to it. He frequently spoke of this farm as his home.

These facts make a strong case in favor of abandonment. Had the jury found against appellant's claim of homestead, there would be no question of the sufficiency of the evidence to support such finding. But that is not the question presented to us for decision. We must determine whether these facts conclusively establish abandonment as a matter of law, leaving no issue of fact for determination. As is well said by Mr. Nunn in his new book on the Texas Homestead:

"There is no matter connected with the homestead that is more difficult of a proper solution than that of the question of abandonment. * * *

"The rule, early announced and now unanimously accepted is: (a) that there must be an intent on the part of the head of the family to permanently abandon and cease to use the property for homestead purposes; (b) and that such intent must be actually executed, and the property abandoned for homestead purposes, in accordance therewith. The intent here contemplated is a present, definite and permanent intent to cease to use the property for homestead purposes, as distinguished from an indefinite, uncertain or conditional intent to so abandon the use of the property for such purpose." Nunn on Exemptions, § 4, pp. 159, 160.

In support of the text, such leading cases as Shepherd v. Cassiday, 20 Tex. 24, 70 Am. Dec. 372, and Archibald v. Jacobs, 69 Tex. 248, 6 S. W. 177, are cited.

The only question presented in the record before us is whether there was conclusively established the definite and permanent intent contemplated by law. If that existed, then abandonment is established, for there is no issue of fact as to whether same was actually executed. The family had not resided upon this...