Central Life Assur. Soc. v. Gray

• Court: Texas Court of Appeals
• Writing for the Court: Gallagher
• Citation: Central Life Assur. Soc. v. Gray, 32 S.W.2d 259 (Tex. App. 1930)
• Decision Date: 09 October 1930
• Docket Number: No. 938.,938.
• Parties: CENTRAL LIFE ASSUR. SOC. (MUTUAL) v. GRAY et al.

32 S.W.2d 259

CENTRAL LIFE ASSUR. SOC. (MUTUAL) v. GRAY et al.

No. 938.

Court of Civil Appeals of Texas. Waco.

October 9, 1930.

Rehearing Denied November 13, 1930.

Appeal from District Court, Hill County; Walter L. Wray, Judge.

Action by J. C. Gray and wife against the Central Life Assurance Society (Mutual). Judgment for plaintiffs, and defendant appeals.

Affirmed.

Coker, Wilson, Rhea & Neel, of Dallas, for appellant.

McLean, Scott & Sayers and Chas. T. Prewett, all of Fort Worth, for appellees.

GALLAGHER, C. J.

Appellant, Central Life Assurance Society (Mutual), a judgment creditor of appellee J. C. Gray, caused an execution issued on its judgment to be levied by George Simmons, sheriff of Hill county, upon a certain tract of land situated in said county, consisting of 123½ acres and belonging to appellee. Appellee, joined by his wife, Bess Gray, brought this suit against appellant and said sheriff to enjoin the sale of said property under said writ, on the ground that the same at the time of the levy thereof constituted his homestead.

Appellee testified, in substance, that he came to Hill county from Mississippi; that his father died in Mississippi in 1891, when he was about 22 years old; that he was the oldest son; that, after the death of his father, his mother having died long prior thereto, his family consisted of an unmarried sister, three younger brothers, and himself, and that they all lived together as one family; that two of said brothers married and moved away while they lived in said state; that he came to Hill county in 1901 and bought the tract of land involved in this suit as a home for his family, which at that time consisted of his said sister and youngest brother; that he was then taking care of both of them; that his brother was 22 years old and able-bodied, but was wild and dissipated, and he was trying to get him to settle down; that he moved onto said land with his said family in the latter part of 1902, and that they all continued to reside thereon for four years thereafter; that his sister was then about 40 years of age; that she lived with him and kept house for him and his brother, and that his money took care of her; that his physical condition became very bad, and it appeared that he would die if he remained there; that on account of such condition he went to Tioga, Tex., to try the mineral water there, and was still using same; that when he went to Tioga he broke up housekeeping, and his sister went to live with another brother who had theretofore moved to Hill county; that he, his sister, and his brother discussed the situation and recognized that his state of health made it absolutely necessary to leave that place; that he intended to return thereto just as soon as his health would permit, and that such was the intention of other members of his family, and the understanding between them; that his sister never married, and that he contributed to her support while she lived with such other brother; that she was dissatisfied and came and stayed with him at Tioga about a year, and then returned to said other brother; that she died a short time before the trial of this case.

Appellee further testified that he was married in 1922, and that a child was born of such marriage; that he had always intended and still intended to return and reside on the land in controversy as his permanent home as soon as his health would permit; that he and his wife planned to start a chicken ranch thereon; that the house had burned down some time before, and that he had never been able to rebuild it, though he had tried ineffectually to arrange for funds to do so; that he had always rented the place from year to year and never for a longer period. He further testified that the continued use of the mineral water at Tioga had been necessary ever since he moved there; that he got better at first and was able to conduct an undertaking business there for a number of years; that he boarded all the time both before and after his marriage, until about two years before he removed there, during which last two years he resided in a rented house with his family; that about a year before the trial he went to Handley, Tex.; that while there he lived in a rented house; that he was unable to work and could do nothing but stay at the house and take care of the baby so his wife could work in a department store. Mrs. Gray testified that she had known appellee since he first came to Tioga; that she remembered when his sister lived with him there; that they were both boarding at the time, and she knew that appellee paid his sister's board and claimed that she was dependent on him. She further testified to appellee's delicate health and his continued use of the water and the necessity therefor, and that they had always claimed the land in controversy as their home and intended to remove thereto as soon as possible. Appellee introduced the testimony of other witnesses, who testified to his continual claiming of the land in controversy as his homestead. There was testimony that appellee voted in elections while he resided in Tioga, and that he acquired an equity in a tract of land in Grayson county, but that he never resided on the same and had disposed thereof some time before the levy of the writ in this case. Appellee never resided on the land in controversy after he left the same for Tioga in 1906.

The case was tried before a jury. The court overruled appellant's request for an instructed verdict and submitted the case upon special issues. Appellant makes no complaint of the manner of submission. The jury found in response to such issues, in substance, that the land in controversy was on July 3, 1929, the date of the levy of the writ, the homestead of appellees, and that appellee Gray had never abandoned the same with the fixed intention of never returning thereto. The court rendered judgment on the verdict perpetually enjoining appellant and said sheriff from "disposing of, attaching or selling said tract of land."

Opinion.

Appellant presents as ground for reversal three separate propositions, all of which are based upon a single assignment complaining of the refusal of the court to instruct a verdict in its favor. Appellant contends in the first of said propositions that the testimony was insufficient to show that the relation between appellee and his sister was of such character...