Collier v. Union Central Life Ins. Co., 8939.
| Decision Date | 08 December 1938 |
| Docket Number | No. 8939.,8939. |
| Citation | 100 F.2d 411 |
| Parties | COLLIER v. UNION CENTRAL LIFE INS. CO. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Nat Harris, of Waco, Tex., for appellant.
B. R. Sleeper, of Waco, Tex., for appellee.
Before SIBLEY, HUTCHESON, and HOLMES, Circuit Judges.
The suit was to foreclose mortgage liens. Appellant defending, pleaded homestead, and by cross complaint sought cancellation of the liens. Plaintiff denied that the property was homestead, and also pleaded estoppel to claim that it was. The trial court found:
(1) That defendant had acquired the title to Lot 2 as well as the adjoining lot of similar size and dimensions, known as Lot No. 1, Block 11, original town of Temple, and constituting with Lot 2, the west half of Block 11, prior to August 25, 1918, and owned both lots on that date, when he conveyed an undivided half interest therein to A. E. Collier.
(2) That on December 14, 1927, a partition deed was executed between the Colliers, in which a vendor's lien was retained on Lot 2 to secure the payment of an aggregate amount of $14,500 assumed by G. M. Collier out of the Southwestern Life Insurance Company loan and the Pearce loan.
(3) That the chief business and calling for the greater part of the life of G. M. Collier has been that of contractor and builder; that he was the financial backer of Arthur E. Collier, and a partner in the contracting business; that the revenue with which he supported his family came mainly from the apartment houses and duplexes, rather than the brick building; that G. M. Collier's connection with the roominghouse was not such as to constitute an "unequivocal, unambiguous, open and patent occupancy of the premises as his business homestead."
(4) That the agent of the Union Central Life Insurance Company had no notice of any homestead claim, and relied on the affidavits of the Colliers and the statements made in the application for the loan, that the property was not homestead and was not being used as such.
(5) That the use of the premises in question by G. M. Collier was not of such unambiguous and unequivocal a nature as to clearly and visibly impress the property with the homestead character.
(6) That the Colliers had designated as their homestead other property which they had used and occupied as a homestead for many years, and which they were actually using and occupying as a residential homestead at the time of the designation, and had made an affidavit that they had abandoned the premises in controversy for business purposes, and were not using or claiming it as a homestead, and had no intention of ever using or occupying same as a business homestead.
(7) That G. M. Collier's former occupancy of the property for business had been by reason of his partnership interest in the business of G. M. Collier & Son, whose stock of merchandise had been removed before the making of the loan, and abandonment of the property as a business homestead had resulted.
(8) That if defendant was not estopped by equitable rules applicable to this case, and his evidence supported any claim to exemption; it was only to the three story brick roominghouse situated on Lot 2 in Block 11, since there was a segregation of the property, each house and cottage constituted a unit, separate and distinct, and such possession as he had, if any, of the roominghouse would not and did not extend to any other property on that lot.
Upon these findings he concluded as matter of law: (1) That the proof was insufficient to establish the homestead claim to any part of the property. (2) That defendant was estopped, both as to the existing liens which plaintiff in good faith took up, and as to the $3000 of new money advanced, by representations, affidavits and actions, from asserting against plaintiff the claim of business homestead.
Finally, he found that G. M. Collier, having assumed the lien of complainant against the half interest in the lot conveyed to him by A. E. Collier, was by the assumption estopped to deny its validity. He gave plaintiff judgment for foreclosure, and dismissed Collier's cross action for removal of cloud and cancellation of lien.
Appellant concedes that the judgment was right as to all of the property in question, except the brick hotel or roominghouse on Lot 2 and the necessary land in connection with it.
His claim is that: the record permits of no other reasonable conclusion than that, beginning many years before the making of the Pearce and...
To continue reading
Request your trial
-
In re Yamin
...or its successors are precluded from thereafter asserting a homestead interest in the mortgaged property, Collier v. Union Central Life Ins. Co., 100 F.2d 411 (5th Cir.1938); and Wehring v. Schumann, 83 S.W.2d 1112 (Tex.Civ.App. — Galveston 1935, no Assuming that Yamin had established a hom......
-
Luzier's, Inc. v. Nee, 11405.
...the same is clearly erroneous. Federal Rules of Civil Procedure, No. 52, 28 U.S.C.A. following section 723c; Collier v. Union Central Life Insurance Company, 5 Cir., 100 F.2d 411; Guilford Const. Company, et al., v. Briggs, 4 Cir., 102 F.2d The burden of proof was on the plaintiff to show t......
-
Coosa Land Co. v. COMMISSIONER OF INTERNAL REVENUE
...to affirm it, is, against his changed version of it, when his interest has changed, still taken to be true. Collier v. Union Central Life Ins. Co., 5 Cir., 100 F.2d 411; Croker v. Croker, 5 Cir., 51 F.2d The finding that petitioner owned and was taxable for the years 1926 and 1927 on profit......
-
Code v. London
... ... Knauf & Tesch Co. v ... Elkhart Lake S. & G. Co., 153 Wis ... 123, 102 N.W. 658, 111 Am.St.Rep. 404; Collier v ... Union Central Life Ins. Co., 5 Cir., ... ...