Cameron v. Gebhard

• Decision Date: 24 June 1893
• Citation: 22 S.W. 1033
• Parties: CAMERON et al. v. GEBHARD et ux.
• Court: Texas Supreme Court

22 S.W. 1033

CAMERON et al. v. GEBHARD et ux.

Supreme Court of Texas.

June 24, 1893.

Error from court of civil appeals of third supreme judicial district.

Action by William Cameron & Co. against L. H. Gebhard and wife to foreclose a mechanic's lien. From a judgment of the court of civil appeals (21 S. W. Rep. 786) affirming a judgment of the district court dismissing the action, plaintiffs bring error. Affirmed.

L. C. Alexander, for plaintiffs in error. Scarborough & Rogers and Pearre & Boynton, for defendants in error.

BROWN, J.

Plaintiffs in error sued the defendants in error in the district court to enforce a material man's lien upon a certain lot in the city of Waco. The case was tried before the judge without a jury, and findings of the facts were made and filed on the written motion of the plaintiffs. The findings of the district judge were adopted by the court of civil appeals. Judgment was given against plaintiffs, which was affirmed by the court of civil appeals, (21 S. W. Rep. 786,) and a writ of error granted by this court.

The facts are, briefly, that Mary Gebhard owned a lot in Waco as her separate property, which was the homestead of herself and her husband. They sold that homestead, and purchased the lot upon which it is sought to foreclose the lien in this suit with a part of the proceeds of such sale. At the time of the purchase, and at all times, they declared that they intended to make the lot so purchased their homestead. Gebhard made a contract with Turntine to build a house upon the lot, Turntine to furnish lumber and erect the building for a given price. Turntine was unable to purchase the lumber, and Gebhard entered into a contract with the plaintiffs to furnish to Turntine the lumber necessary for the building, the cost of the lumber to be deducted from the price agreed to be paid to Turntine. Defendant Gebhard transferred to plaintiffs a note which he had received for a part of the purchase price of his former homestead as an advance payment on the lumber to be furnished. Plaintiffs knew at the time that they agreed to furnish the lumber that defendants had sold their former homestead, and purchased this lot with intention to make it their future homestead; that they had contracted with Turntine to build a residence upon the lot, and that the lumber to be furnished by them was to be placed in that residence. They furnished the lumber, which was used in erecting a residence on the lot, and the amount sued for is an unpaid balance on the lumber so furnished. There was no improvement upon the lot in question, and Gebhard had taken no steps to establish his homestead on it other than the making of the contract with Turntine to build the house upon it. No contract in writing was made, but in all other respects the requirements of the law for fixing a lien on the property were complied with by plaintiffs.

The only question presented for our consideration in this case is, was the lot in question the homestead of defendants at the time that the contract for the purchase of the lumber from plaintiffs was made? If it was not, the judgment should be reversed. If it was a homestead at that time, the judgment should be affirmed. Upon the facts presented in this case we hold that the homestead right in favor of defendants had attached to the lot sought to be subjected to the lien asserted before the contract for the purchase of the lumber was made, and that, plaintiffs in error having failed to make a contract in writing, signed and acknowledged as required by law, no lien was created upon the lot. It is not necessary that we should, in this case, decide whether or not Turntine acquired a lien, or could, without writing, have fixed a lien on the lot. Cases arising under homestead laws differ so widely in their facts that it is impossible to lay down any definite rules to govern in all cases that may arise. Each case must be determined upon its own peculiar state of facts; and oftentimes, with very slight difference in the facts, conclusions have been reached in different cases which present the appearance of conflict when in fact there is none, the facts being understood. Pope v. Graham, 44 Tex. 196, on first reading would seem to be to some extent in conflict with the conclusion announced in this case, but when the facts of that case are understood, there is no such conflict. The statement given of the facts in Pope v. Graham in the published report does not show what the intention of Pope was as to the future use of the property, or that any intention in reference thereto had been formed at a date anterior to the making of the contract. Referring to the original record in that case, we find that the only evidence introduced on the trial relative to the homestead referred to the date of the trial. The opinion expressed upon that point was evidently based upon the conclusion that the homestead right was not asserted until after the contract for building was made. That this was the understanding of the judge that delivered the opinion is made clear by his reference to the case of Potshuisky v. Krempkan, 26 Tex. 309, in which the homestead right was not asserted until after the lien had attached. In Franklin v. Coffee, 18 Tex. 413, Chief Justice Hemphill, delivering the opinion, said: "Nor would it be necessary to secure the exemption that a house should be built, or improvements made; but there must be a preparation to improve, and this must be of such a character and to such an extent as to manifest beyond a doubt the intention to complete the improvements, and to reside upon the place as a home." Again, in the same case, it is said: "In this case there was no house or home upon the land. The plaintiff had not resided here before or since his marriage. He had made no preparation or done no acts which would evince a fixed intention or purpose to select and appropriate the place as a home." The facts in that case justified the conclusion that there was no homestead, but the court announced a rule which has been followed in all subsequent cases. These principles enunciated in that case have been recognized and applied by this court in the cases of Moreland v. Barnhart, 44 Tex. 280; Railroad Co. v. Winter, Id. 611; Barnes v. White, 53 Tex. 631; Brooks v. Chatham, 57 Tex. 33; Swope v. Stantzenberger, 59 Tex. 390; Gardner v. Douglass, 64 Tex. 76; Archibald v. Jacobs, 69 Tex. 251, 6 S. W. Rep. 177; Dobkins v. Kuykendall, 81 Tex. 183, 16 S. W. Rep. 743; and many other cases. In the case of Stone v. Darnell, 20 Tex. 11, it was in fact decided upon the same principle as that enunciated in the case of Franklin v. Coffee. Darnell had not lived upon the land, but had sold a former homestead, and with the proceeds purchased the land in question, with the...