Cocke v. Espinoza

• Decision Date: 05 November 1924
• Docket Number: (No. 7206.)
• Citation: 265 S.W. 1103
• Parties: COCKE v. ESPINOZA et ux.
• Court: Texas Court of Appeals

Page 1103

265 S.W. 1103

COCKE v. ESPINOZA et ux.

(No. 7206.)

Court of Civil Appeals of Texas. San Antonio.

November 5, 1924.

Rehearing Denied December 1, 1924.

Appeal from District Court, Bexar County; Robt. W. B. Terrell, Judge.

Suit by M. G. Espinoza and wife against Emmett B. Cocke. From a judgment for plaintiffs, defendant appeals. Reversed in part, and rendered.

Templeton, Brooks, Napier & Brown, Ben H. Kelly, and Emmett B. Cocke, all of San Antonio, for appellant.

Davis & Wright, of San Antonio, for appellees.

FLY, C. J.

This is a suit instituted by appellees against appellant to recover certain land in the city of San Antonio, described as the west one-half of lots 8, 9, and 10, block 5, New City Block. The cause was submitted to a jury on special issues, and on the responses thereto judgment was rendered in favor of appellees for the land.

The jury found that the land was of the market value of $1,500 on October 5, 1920; that the total indebtedness against it was $306; and that appellees had formed an intention, prior to the date of the levy and sale of the lots by virtue of an execution under which appellant claims title, to use and occupy the lots as a homestead and that such intention existed at the time of such execution sale. Appellees elected to recover under the first count of their petition, a statutory action in trespass to try title, and under the third court, which set up homestead rights on the date of the forced sale. They abandoned the right to recover under the second count, which was a proceeding to set aside the sale for gross inadequacy of consideration, and in connection with which count $285 had been tendered into court to pay off the amount paid by appellant for the land at execution sale. In addition to rendering judgment for the land in favor of appellees, the money paid by them into the registry of the court was ordered to be returned to them.

If appellees at the time of the levy and sale under execution of the lots had formed the intention, in good faith, coupled with certain definite acts, to make a homestead of the lots, then the homestead right attached.

While some cases have held that bare intention will dedicate a tract of land to homestead purposes, the fixed rule of the Texas decisions has been and is that there must be some preparation to improve the property. Franklin v. Coffee, 18 Tex. 413, 70 Am. Dec. 292; Stone v. Darnell, 20 Tex. 11; Potshuisky v. Krempkan, 26 Tex. 307; Moreland v. Barnhart, 44 Tex. 280; Railway v. Winter, 44 Tex. 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. 177; Dobkins v. Kuykendall, 81 Tex. 183, 16 S. W. 743; Cameron v. Gebhard, 85 Tex. 610, 22 S. W. 1033, 34 Am. St. Rep. 832; West End. Co. v. Grigg, 93 Tex. 456, 56 S. W. 49; Garcia v. Uveda (Tex. Civ. App.) 198 S. W. 167; Gallagher v. Gallagher, 214 S. W. 516. As said by this court in Garcia v. Uveda:

"Stripped of the unnecessary verbiage with which the rule has been somewhat obscured, it seems that it should be that intention is sufficient to fix a homestead right in unoccupied land, but that the mere oral testimony of witnesses, unaccompanied by acts of the owner in connection with the land which tend to show that the land is being prepared for homestead, and no other purposes, such acts being put into effect within a reasonable time, will not show intention. In other words, intention can only be shown by open, public, manifest acts in connection therewith, that show that the land has been set apart for homestead and no other purposes."

The evidence showed that appellees bought the three half lots in dispute on February 10, 1916, from Victor and Ida V. Burger, and on October 5, 1920, the land was regularly sold under execution and was purchased by appellant for the sum of $100. M. G. Espinoza swore that he formed the intention to build a house on the lots in 1918, two years after he purchased it, and that he spoke to contractors about it. In the same year he put down some posts and put "just one strip of lumber around the posts." He did not take down the strip and posts, but they were stolen in the latter part of 1918, and never replaced. He swore that after building the one strip fence:

"The only thing that I have done is to keep the lots in condition, keep the lots cleaned, keep the brush off of them, but this year...