C. B. Carter Lumber Co. v. Clay

• Decision Date: 09 November 1888
• Citation: 10 S.W. 293
• Court: Texas Supreme Court
• Parties: C. B. CARTER LUMBER CO. <I>v.</I> CLAY <I>et al.</I>

10 S.W. 293

C. B. CARTER LUMBER CO.

v. CLAY et al.

Supreme Court of Texas.

November 9, 1888.

Appeal from district court, Kaufman county; ANSON RAINEY, Judge.

Action to recover real property, brought by the C. B. Carter Lumber Company against John Clay and others. Judgment for defendants, and plaintiff appeals.

T. L. Stanfield and Allen & Vesey, for appellant. Wood & Charlton, for appellees.

STAYTON, C. J.

The property in controversy was the homestead of Antonio de Grazier and family. In December, 1884, the property, consisting of a house and lot in the town of Terrell, was rented to a tenant for one year; and the evidence tends to show that this was done on account of the ill health of Mrs. De Grazier, the husband and wife intending to board for one year. On January 27, 1885, the appellant caused a writ of attachment to be levied on the property, based on a debt due it by De Grazier. The action in which that writ was sued out was prosecuted to final judgment, and under that the property was sold, and purchased by appellant. On January 28, 1885, De Grazier, joined by his wife, conveyed the property to Julia Durham in consideration of $700 paid. This action was brought by appellant against the tenant of Mrs. Durham, and she became a party defendant. The cause was tried by the court, and judgment rendered for defendants.

The only question presented is as to the correctness of the findings of the court on the evidence. There is some testimony tending to show that De Grazier, after renting the property, declared his intention to leave the state; but such intention is denied by him and his wife, who testified in the case. They both state that their intention was to return to the property at the expiration of the lease, and that this intention continued until they conveyed to Mrs. Durham. The circumstances of their renting the property were shown, and were not such as to induce the belief that the renting was intended to be more than temporary. Under this state of facts it cannot be held that the finding against abandonment was not sustained by the evidence. The court below having found the facts against appellant, on testimony somewhat conflicting, but sufficient, in favor of appellees, if believed, to sustain the judgment, it will be affirmed.