Carstens v. Landrum
| Decision Date | 22 March 1928 |
| Docket Number | (No. 2128.) |
| Parties | CARSTENS et al. v. LANDRUM et ux. |
| Court | Texas Court of Appeals |
Appeal from District Court, Bexar County; S. G. Taylor, Judge.
Action by Charles G. Carstens, on whose death George A. Carstens and others, independent executors of decedent's estate, were substituted as plaintiffs, against J. M. Landrum and wife. From a judgment for defendants in part, plaintiffs appeal. Affirmed.
S. Engelking, of San Antonio, for appellants.
Dwyer & Russell, of San Antonio, for appellees.
This suit was brought by Charles G. Carstens against J. M. Landrum and wife, upon note executed by the defendants in favor of the plaintiff for $2,000, dated April 12, 1918, and to foreclose a deed of trust of the same date securing the note executed by defendants to W. A. Wurzbach, trustee, upon 200 acres of land in Atascosa county.
Carstens died, and the suit was prosecuted to judgment by the independent executors of his estate.
The deed of trust contains the following:
The defendants pleaded that the 200 acres was their homestead, and prayed cancellation of the deed of trust.
The plaintiffs pleaded estoppel to assert the homestead claim because of the written declaration in the deed of trust and oral declarations of defendants to Chas. G. Carstens respecting their homestead being upon the Corpus Christi road property and their abandonment of the Atascosa county land as such.
Upon special issues the jury found:
(1) At the time of the execution of the deed of trust the 200-acre tract was the homestead of J. M. Landrum and family.
(2) At the time of the execution of the deed of trust a portion of the 200-acre tract was being actually used or actually occupied by J. M. Landrum or by J. M. Landrum and his minor son, with the intention and purpose on the part of J. M. Landrum that said 200-acre tract was the homestead of himself and family.
(2½) Such use or such occupancy was open, visible, and apparent.
(3) The 200 acres had not been permanently abandoned by Landrum and wife as the home of themselves and family previous to the execution of the deed of trust.
(4) At the time of the execution of the deed of trust, the property on the Corpus Christi road was not the homestead of Landrum and wife.
(4½) The family of J. M. Landrum was not living in the house on the Corpus Christi road at the time the deed of trust was executed.
(5) Landrum and wife, before the execution of the deed of trust, and as an inducement to procure the $2,000 loan, did not represent and state as a fact to W. A. Wurzbach in substance and effect that they then lived on the Corpus Christi road and had abandoned the 200 acres in Atascosa county as their homestead.
(6) Wurzbach did not believe and rely upon such statement, if any.
"Question No. 7: If said statement had not been made (that is, if the same was made), would Charles G. Carstens or said Wurzbach have refused to make said loan?" Answer: "No."
(8) Wurzbach was not acting as the agent of Chas. G. Carstens.
"Question No. 9: If, in answer to question No. 8, you have found said Wurzbach was acting as the agent of Chas. G. Carstens, then was said agent acting within the scope of his authority with reference to the matters inquired about in questions Nos. 5, 6, and 7?" Answer: "No."
Upon the findings made, judgment was rendered in favor of the plaintiff for the amount due upon the note against J. M. Landrum. The deed of trust was declared to be void and canceled, and the 200 acres of land released from the lien sought to be fixed thereon by the same.
From this judgment the executors of the decedent appeal.
It is first assigned as error that the finding upon the issue of abandonment as a homestead of the 200-acre tract in Atascosa county, and the finding upon the issue of the acquisition of a new homestead upon the Corpus Christi road property at the time of the execution of the deed of trust, is against the preponderance of the evidence to that degree which shows manifest injustice has been done, for which reason a new trial should have been granted by the court below.
J. M. Landrum testified: He acquired the land in controversy in 1906. In the fall of 1917 his wife came to San Antonio to school their children. That he continued to live on the farm with his four year old boy, and cultivated part of it. That another son cultivated a portion of it, and he had leased 100 acres of the same to one Charlie Hurley. From the time he purchased said property and made it his homestead he continued to live there until 1922, when he came to San Antonio to live, and that he leased his home to his son and to other persons. That in April, 1918, he was living on the farm, and his wife was living on Pardee street in San Antonio, and he continued living on the farm in 1918, 1919, 1920, 1921, and 1922. The purpose of his wife in coming to San Antonio was to educate her children and obtain positions for some of them who were large enough to work. At the time the note and deed of trust were executed, his wife was living in San Antonio on Pardee street, and he was living on his homestead in Atascosa county.
He further testified his wife came to San Antonio in 1917, and that she first rented a house on Roosevelt avenue, and from time to time he visited her, but that he continued to remain and cultivate the property under controversy until 1921. In November, 1917, his wife moved from Roosevelt avenue to a house she rented on Pardee street, and...
To continue reading
Request your trial
-
First State Bank of Memphis v. Seago
...abandoned before the acquisition of a new one, except upon evidence of very convincing character showing abandonment. Carstens et al. v. Landrum, Tex.Civ.App., 5 S.W.2d 208; Bogart v. Cowboy State Bank & Trust Co., Tex.Civ.App., 182 S.W. 678; Sykes v. Speer et al., Tex.Civ.App., 112 S.W. In......