Connelly v. Johnson, (No. 7099.)

• Decision Date: 27 February 1924
• Docket Number: (No. 7099.)
• Parties: CONNELLY et al. v. JOHNSON et al.
• Court: Texas Court of Appeals

Page 634

259 S.W. 634

CONNELLY et al. v. JOHNSON et al.

(No. 7099.)

Court of Civil Appeals of Texas. San Antonio.

February 27, 1924.

Appeal from District Court, Frio County; Covey C. Thomas, Judge.

Suit by Lula L. Johnson and another against R. L. Connelly and another. Judgment for plaintiffs, and defendants appeal. Reversed and remanded.

S. T. Dowe, of Pearsall, and J. D. Dodson, of San Antonio, for appellants.

Geo. M. Clifton and Geo. G. Clifton, both of San Antonio, for appellees.

COBBS, J.

This suit was brought by appellees against appellants for an injunction to restrain the sale of certain property under execution, situated in the unincorporated town of Moore, in Frio county, known as the Speed addition, described by lots and block numbers.

Appellants first filed a motion to dismiss the temporary injunction, which being overruled, filed their answer.

The case was tried with a jury, and after hearing the evidence the court charged the jury to return a verdict for the appellees, which was accordingly done, and thereupon entered judgment perpetuating the injunction and caused the levy and execution and lien caused thereby to be canceled.

Independent of any other alleged or claimed errors committed by the trial court, the case must be reversed because of fundamental error, unless the whole evidence was uncontradicted that the property was, beyond any disputed fact, the homestead of appellees. This charge requires us, in support of the judgment, which it is our duty to affirm if we can, to examine the entire record and all the evidence introduced on the trial.

The testimony shows that appellees resided in improvements on one side of the unincorporated town of Moore, on approximately 80 acres of land, and while so residing purchased the property upon which the levy was made, lying in the opposite part of the town a distance of at least a quarter of a mile away, not adjacent to the part upon which appellees resided, but entirely separated therefrom. It was platted as a subdivision of the town of Moore, and lots were sold from time to time to purchasers, who made improvements thereon, and in none of such sales by the husband did the wife join. The unsold portion is now under three separate fences; and since appellees' purchase of this property nothing has been done with it to indicate any change of ownership. The only part that appellees have used and cultivated lies on the right-hand side of the railroad track, representing only a part, and that portion west of the railroad track is not in cultivation, and its use has been but occasional. That portion east of the railroad track has been rented at times on shares, and at times farmed by appellee under the direction of his wife.

The town of Moore contains about 300 inhabitants. The land upon which appellees reside, with the improvements, and claimed as a rural homestead, is separated from that upon which the writ of execution is levied, which land so levied upon was acquired subsequent to that upon which the home was actually made. When these lots were acquired, they were represented upon a duly recorded map showing subdivisions of the town of Moore, with blocks, streets, and alleys platted thereupon. Residences are situated upon parts of that subdivision, by which description the appellee has, from time to time, sold lots without the wife's signature; and when lots were so sold the fences inclosing same would be moved back so as to exclude said sold lots. These lots were platted by appellees' vendor, for whom appellee was the agent, and no change was made in their character since the appellees' purchase. They were probably subdivided to go on the market for sale and speculative purposes. Streets are open through the platted addition and are traveled over by the public. Fences are around some of the lots.

The only use appellee Johnson said he made of the property west of the railroad, since he acquired it in 1913, was to use it for a stock pasture for mules, cows, horses, and things; that he had farmed portions east of the railroad track; that he bought the land, consisting of about 120 acres, to finish out a homestead of 200 acres; that at the time of such purchase he owned the 80 acres where his house and residence is, and where he then and now resides with his family; and that he owns about 1,500 acres additional eleswhere, 700 of which is in cultivation. He said he does not know how many acres are in the Speed addition levied on, which he purchased to complete his homestead. His business is cattle business, and from 1915 to 1922, spent nearly all his time in Webb county.

The use of the lots, since his purchase, has not been materially changed. He made improvements thereon, which he says he was not required to make in order to sell out property from the addition.

There is much detailed testimony in the record, concerning its use, etc., for homestead purposes. We shall not discuss the testimony in detail, because the case will have to be retried, and we do not wish to embarrass the parties by any expression of opinion in reference thereto. That function does not belong to the courts, but rather to the juries, unless waived, which it was not.

It is the express contention of appellees in this case that the three tracts of land consisting of a 40-acre tract and a 10-acre tract east of the railroad, and the 60-acre tract west of the railroad, constituted appellees' rural homestead under the provision of article 16, § 51, of the Constitution of Texas.

Being in a town, and the property divided in blocks and lots, we can hardly see how it can be called a rural home. Under the provision of the Constitution, "the homestead, not in a town or city, shall consist of not more than 200 acres of land, which may be in one or more parcels, with the improvements thereon." That is what is called a "rural homestead."

The "homestead in a city, town or village, shall consist of lot or lots, not to exceed in value of $5,000, at the time of their designation as the homestead, without reference to the value of any improvements." This is called an "urban homestead."

The "homestead" is defined by article 3786, R. S., in the same language of the Constitution. The urban homestead is not limited by any number of lots, but is limited by the ground value thereof at the time of designation, not to exceed $5,000, "provided, that the same shall be used for the purposes of a home, or as a place" of "business."

Now, having the definition of a homestead clearly defined by the Constitution, and in mind, it will be observed that it is unimportant whether the urban home be included in an incorporated or unincorporated town or city. Lasseter v. Blackwell (Tex. Com. App.) 227 S. W. 944. The test of an urban homestead is determined, not by the size or number of the lots, but by the value of the lots themselves used for the purposes of the home.

The rural home is not limited by value, but by acreage. Obviously there can be no rural homestead consisting of a large area of ground cut up into lots and blocks in a town or city, unless they are used for the purposes of a home. In other words, it would be of no importance whether such lots extended beyond the supposed limits of the town or not, if they are used as a home (or place of business), making such use as is contemplated by the language of the Constitution that gives the protection to the family. Temporary renting would not affect their homestead character. The right to fix the homestead character upon the lots must be determined by their occupancy and use, and such use cannot be so blended as to make the same partake of a rural homestead of 200 acres partly in the town and partly in the country. Swearingen v. Bassett, 65 Tex. 267; Iken v. Olenick, 42 Tex. 195; Rogers v. Ragland, 42 Tex. 422; First Nat. Bank v. Walsh (Tex. Civ. App.) 26 S. W. 1113; Lauchenvier v. Saunders, 19 Tex. Civ. App. 392, 47 S. W. 543; Dillard v. Cochran (Tex. Civ. App.) 153 S. W. 662; Harrington v. Mayo (Tex. Civ. App.) 130 S. W. 650. This court has recently expressed itself upon this same subject. See First Nat. Bank of McAllen v. Jones (Tex. Civ. App.) 244 S. W. 1057; Ewing v. Riley (Tex. Civ. App.) 246 S. W. 95.

We do not...