City of El Paso v. Long

• Decision Date: 18 September 1947
• Docket Number: No. 4522.,4522.
• Citation: 209 S.W.2d 950
• Parties: CITY OF EL PASO et al. v. LONG.
• Court: Texas Court of Appeals

209 S.W.2d 950

CITY OF EL PASO et al. v. LONG.

No. 4522.

Court of Civil Appeals of Texas. El Paso.

September 18, 1947.

Rehearing Denied October 16, 1947.

Appeal from District Court, El Paso County; Ballard Coldwell, Judge.

Suit in trespass to try title by A. D. Long against the City, the County of El Paso, and Dr. George W. Cox, to recover possession of certain realty, wherein the city and county jointly sought relief by cross-action. From a judgment for the plaintiff, the city and county appeal.

Judgment affirmed.

Travis White and Ernest Guinn, both of El Paso, for appellant.

Cunningham, Ward & Cunningham, of El Paso, for appellee.

PRICE, Chief Justice.

This is an appeal from the judgment of the District Court of El Paso County, 65th Judicial District. A. D. Long, as plaintiff, instituted a suit in trespass to try title against the City of El Paso, the County of El Paso and Dr. George W. Cox, as defendants, seeking the recovery of certain property just outside the city limits of the city of El Paso, and upon which was situated a hospital building. Trial was before the court without a jury, and judgment was in favor of plaintiff decreeing the recovery of the premises, subject to a certain lease held by the State of Texas and denying the City and County the relief jointly sought by cross-action. The City and County have perfected this appeal.

Dr. Cox's answer consisted of a disclaimer, followed by a plea of not guilty; El Paso County adopted the answer of Dr. Cox; the City plead not guilty and general denial, and then adopted the answer of Dr. Cox. Subsequently the City and County, purporting to act in their own behalf and also through the City and County Health Department, filed a cross-action stating that they had exercised an option to purchase granted in paragraph 2 of the contract referred to in the pleadings "and tender is hereby made in court of the full amount owing to said plaintiff Dr. Long under and by virtue of such option, and said parties stand ready and willing and able to carry out their part of said option to purchase, but that plaintiff refused to accept said tender." Specific performance of the contract was sought. It is thought that defendants sought to enforce a contract to purchase the property sued for. This is by no means a necessary inference from the allegations of the cross-action.

Plaintiff filed answer to the cross-action, and among other things alleged that for fifteen years prior to March 1, 1943, the property in question had been his and his wife's homestead, and also plaintiff during said time had operated a tubercular sanitorium in said buildings; that said buildings had only been temporarily rented and never been abandoned as homestead.

On motion of appellants the court filed findings of fact and conclusions of law. It was found that the "land described at all times is and was the homestead of plaintiff and his wife."

Appellant urges two points of error. In substance, that the court erred in refusing to specifically enforce the contract to convey the property, and the court erred in holding the property requested was the homestead of Long and wife. There is no material conflict in the testimony, but it is thought that different inferences are deducible therefrom, and that the material issues were for the trial court.

On March 1, 1943, the State of Texas, acting through her Health Department, entered into a contract with appellee. In substance, the State was granted the right to use and occupy the property in controversy for the existing emergency as declared by the President on September 8, 1939, and for six months following the termination thereof; "said term to run co-extensively with and subject to present and future allotment of available funds from the Government of the United States as aforesaid, for the continuance and operation and maintenance of said described Public Works." A short interim term was provided for, and it was provided that such interim term shall be automatically extended and be in force and effect for a period of one year from August 31, 1943, to September 1, 1944, and for such successive yearly period thereafter during the existence of said emergency and six months thereafter (provided an allotment of funds to operate and maintain such public works for each granted yearly period is available). It was contemplated that these hospital facilities should be used as a venereal clinic by the State, under the supervision of the United States Military Health Department. The State assumed no unconditional obligation to pay rent for the premises; her obligation was to pay $500 per month if the Federal Government made allotment for that purpose. It is thought under the lease that same expired by limitation when and if the Federal Government failed to make funds available for the payment of the $500 per month. The clinic thereafter conducted in the building was to a large extent conducted at the expense of the United States. The State, out of funds furnished by the United States Government, paid the rent of $500 per month until about July, 1946. From about July or August 1, 1946, the State paid the $500 rent up to March 1947 with funds furnished by the appellants. Whether or not any rent has been tendered or accepted since March 1947 does not appear from the statements in either brief.

Prior to removing from the premises, appellee on March 1, 1943, the date of the lease, filed in the County Clerk's office an instrument purporting to designate the property in question as his homestead. This instrument recited that he had only temporarily rented the property for war purposes and intended to re-occupy the same as a homestead. This instrument is, of course, of no legal efficacy and it is not contended that it is. It is perhaps evidentiary as to the intention of appellee.

While possession of the hospital was delivered on March 1, 1943, appellee and his wife did not move therefrom until about March 14, 1943. On the latter date appellee's wife purchased and had deeded to her a residence in the city of El Paso; about said date appellee and his wife moved into the same and have occupied the same to this date. In March 1944, to obtain exemption from taxation, appellee filed with the Tax Collector of El Paso County an affidavit stating that this property was his homestead.

Appellee testified he never intended to abandon said property as his homestead, and intended to remove his business there and his occupancy of same as his residence. In substance this was the finding of the trial court. The provision in the lease relied upon by appellants is as follows: "Option Contractor herein grants to the department or its local governmental branch, the El Paso City-County Health Department, the option to purchase said public works comprising said plant and entire equipment, at any time prior to the termination of possession hereun, for the agreed sum of $50,000.00 less all rental paid to contractor in accordance with this agreement, such balance remaining of said $50,000.00 to be paid, upon the exercise of this option, to be paid the contractor with 4% interest from this date, whereupon said contractor shall execute all necessary papers and deliver to purchaser good and merchantable title in and to said public works."

It is to be observed that neither of appellants is a party to the lease. Neither is named therein; there purports to be an option granted to the State or El Paso City-County Health Department. Art. 4436a — 1, Vernon's Civil Statutes, provides for...