Blomgren v. Van Zandt

• Decision Date: 03 March 1939
• Docket Number: No. 1846.,1846.
• Citation: 126 S.W.2d 506
• Parties: BLOMGREN v. VAN ZANDT et ux.
• Court: Texas Court of Appeals

126 S.W.2d 506

BLOMGREN v. VAN ZANDT et ux.

No. 1846.

Court of Civil Appeals of Texas. Eastland.

March 3, 1939.

Appeal from District Court, Mitchell County; A. S. Mauzey, Judge.

Action by L. L. Blomgren, guardian of Martha A. Crawford, non compos mentis, against G. W. Van Zandt and wife, to recover on a note and to foreclose a deed of trust lien on 80 acres of land. Judgment for the debt against the husband, and plaintiff appeals.

Affirmed.

Barber & Barber, of Colorado, for appellant.

Thomas R. Smith, of Colorado, for appellees.

LESLIE, Chief Justice.

L. L. Blomgren, guardian of a non compos mentis, instituted this suit against G. W. Van Zandt and wife, Cora Van Zandt, to recover on a note payable to said ward and to foreclose a deed of trust lien on 80 acres of land securing the debt. In connection with other defenses, the defendants resisted foreclosure of the lien on the theory that the land was their homestead when the note and lien were given.

The trial was before the court without a jury and resulted in a judgment for the debt against the husband G. W. Van Zandt only and foreclosure of the lien was denied, sustaining the homestead plea. The plaintiff appeals. The parties will be referred to as in the trial court.

There is no statement of facts in the record, but on request the learned trial court made clear and comprehensive findings of fact and conclusions of law.

A rural homestead is involved. The Van Zandts were married January 9, 1906, and on the 9th day of the following February they moved onto said 80 acres of land, establishing thereon their main residence and pertinent buildings and improvements in connection therewith. As found by the court, they have continuously occupied, used and cultivated said land as a homestead, rearing a family of four children, the two younger ones still at home with them.

This litigation grows out of the following additional facts: In 1909 the husband, G. W. Van Zandt, acquired 160 acres of land located one half mile west of the 80 acres. In 1923 he acquired a 200 acre tract of unimproved land one fourth mile south of said 80 acres. The southeast corner of the 160 acres and the northwest corner of the 200 acres are the same point. These acquired tracts were separately enclosed and neither of them touches the 80 acres.

February 14, 1927, the Van Zandts borrowed $1500 from plaintiff's ward, Mrs. Martha A. Crawford, and at that time executed therefor their note and secured same by said deed of trust on the 80 acres. In the deed of trust they stated that the 80 acres constituted no part of their homestead, but that the other two tracts (aggregating 360 acres) did constitute their homestead and that they were then occupying and claiming it as such. This indebtedness ran along and with accumulated interest, taxes, etc., amounted to $2160 and by agreement of the parties the indebtedness was extended by note for that amount dated November 20, 1933, and the same was secured by a deed of trust (February 8, 1934) on said 80 acres. This note and lien constitute the subject matter of this suit.

In seeking to uphold the validity of the lien, it is the contention of the plaintiff that since the defendants, on February 14, 1927 (date of lien), owned 440 acres of land and were using same as a homestead, G. W. Van Zandt, as the head of the family, could legally designate any 200 acres of the land as a homestead, provided he acted without fraud upon his wife, and that such designation would be valid and binding on both of them, and the excess over and above the 200 acres so designated could be legally mortgaged. As authority for this contention, the plaintiff cites Art. 3841, R.S.1925; Affleck v. Wangemann, 93 Tex. 351, 55 S.W. 312; Watkins Land Co. v. Temple, Tex.Civ.App., 135 S.W. 1063; Pickett v. Gleed, 39 Tex.Civ.App. 71, 86 S.W. 946, writ refused; Dodson v. Dickey et ux., Tex.Civ.App., 264 S.W. 586; Hanes v. Hanes, Tex.Com.App., 239 S.W. 190.

On the other hand, the defendants counter with the proposition that the instant case is to be distinguished from those relied upon by plaintiff in that in this case Van Zandts designated as non homestead land the 80 acre tract which they had for years continuously used and occupied as a homestead in fact; and at the same time attempted to designate as homestead 360 acres of land on no part of which they had ever resided, though they had used it to some extent in connection with the 80 acre homestead tract.

To establish the invalidity of the lien under the facts and circumstances of the case, the defendants rely for authority upon Art. 16 of the Constitution of Texas, § 51, Vernon's Ann.St.; Art. 3833, R.S.1925, and Texas Land & Loan Co. v. Blalock et al., 76 Tex. 85, 13 S.W. 12; Bayless v. Guthrie, Tex.Com.App., 235 S.W. 843; Davidson v. Jefferson, Tex.Civ.App., 68 S. W. 822, and many authorities following the leading case of Texas Land & Loan Co. v. Blalock, supra.

Some of the controlling findings by the trial court have already been indicated, and attention will now be directed to others. The 200 acre tract of land was unimproved in February, 1927, but under separate fence and during that year 110 acres thereof were put in cultivation. It will be remembered the deed of trust was executed February 14, 1927. As found, "G. W. Van Zandt has never at any time lived on or occupied as a home the 200 acre tract of land above described; that said 200 acre tract of land had no other improvements on it except being fenced and 110 acres in cultivation prior to 1934. That in 1934 defendant created a new three room house thereon." An additional finding: "I further find that G. W. Van Zandt has never at any time resided on the 160 acre tract, but during all the time he owned the same it was rented out to tenants, sometimes on the third and fourth and sometimes on the halves; that the 160 acres * * had in 1927 as improvements on the same a three room house, lots and barns and some 60 acres in cultivation." That the 160 and 200 acre tracts were used by defendants "to graze their cows and work stock upon * * *."

The court's first finding with direct reference to the defendants' homestead claim is as follows: "I further find that G. W. Van Zandt and Cora Van Zandt are husband and wife and have lived together as such since prior to 1906 and are now living together as husband and wife, and have resided continuously on said 80 acres of land since 1906 and have lived at no other place than on the 80 acres of land; that they have reared a family on said land, which had a residence house of 3 rooms, most of which land has been in cultivation since 1906 * * *. That the 80 acre tract of land is in fact the homestead of G. W. Van Zandt and wife * * * and has been at all times without interruptions since 1906; that they * * * have reared a family thereon, two of the younger children still living with them on the 80 acre tract of land * * * that the 80 acre tract of land is improved with a three room house and has been continuously...