Cooper Co. v. Warwick, 1869.

• Decision Date: 09 June 1938
• Docket Number: No. 1869.,1869.
• Citation: 120 S.W.2d 128
• Court: Texas Court of Appeals
• Parties: COOPER CO., Inc., v. WARWICK et ux.

Page 128

120 S.W.2d 128

COOPER CO., Inc., v. WARWICK et ux.

No. 1869.

Court of Civil Appeals of Texas. Waco.

June 9, 1938.

Rehearing Denied October 13, 1938.

Appeal from District Court, McLennan County, Nineteenth District; Sam R. Scott, Judge.

Suit by Will Warwick and wife against the Cooper Company, Inc., to cancel a certain note and deed of trust executed by the plaintiff to the defendant and to set aside sale made under trust deed to satisfy the note. From an adverse judgment, the defendant appeals.

Reversed and remanded.

Nat Harris, Mabel Grey Howell, and Witt, Terrell & Witt, all of Waco, for appellant.

Bryan & Maxwell and Stansell Bryan, all of Waco, for appellees.

GALLAGHER, Chief Justice.

Appellees, Will Warwick and wife, sued appellant, The Cooper Company, Inc., to cancel a certain note and deed of trust executed by them to appellant and to set aside the sale to appellant of a tract of land containing 203 acres, which sale had theretofore been made under said deed of trust to satisfy said note. As ground for such relief, appellees claimed that the indebtedness which said note purported to evidence had been paid; that the deed of trust which purported to create a lien on said tract of land to secure said note had been fraudulently altered, and that the property described therein was at the time of the execution of such deed of trust and continuously thereafter their homestead. Appellant, in its answer, asserted the validity of said indebtedness, denied the alteration of said deed of trust and appellees' claim of homestead rights in said land, and pleaded affirmatively that if the same had ever been the homestead of appellees, it had been abandoned as such by them long prior to the execution of said deed of trust. Appellant asked that its title to said tract of land be quieted, or in the alternative, for judgment for its debt and for foreclosure of its lien on said land to secure the payment of the same. The pleadings of the parties cover thirty-five pages of the transcript and can not therefore even be epitomized without unduly extending this opinion.

The case was submitted to a jury on forty-six special issues, and the court, on the answers of the jury in response thereto, rendered judgment in favor of appellees cancelling said note and deed of trust, setting aside the sale and deed of conveyance made to appellant thereunder, removing the cloud cast upon appellees' title to said land and vesting title thereto in appellees free of any and all claims or liens thereon asserted by appellant.

Opinion

Appellant presents a group of propositions in which it contends that the court erred in the manner in which the issue of abandonment of the 203 acre tract as a homestead was submitted. It is conceded that said tract was at one time the homestead of appellee and was used and occupied as such by him and his family. In the year 1913, desiring to provide a better and more convenient means of educating his children, he purchased a 5½ acre tract of land in the nearby town of Axtell, erected a house thereon and moved into the same with his family. He engaged in the mercantile business in Axtell and continued such business until about the year 1925. When he moved from said 203 acre tract it was his intention and declared purpose to return and reside thereon when his children were through school. He testified that he had maintained such intention continuously until the time of trial. When he moved to the new place in Axtell he left his teams, farm implements, cattle, hogs and chickens on the farm. Thereafter some of the family continuously went to and fro to milk the cows. He butchered hogs on the farm and used the meat for his family. He also at various times cultivated all or a part of the tillable land on said tract with the labor of his boys. When portions of said tract of land were tilled by others, he received a part of the crops raised. It is of course impracticable to recite all the testimony pro and con on the issue of abandonment of homestead rights in the 203 acre tract and the transfer of such rights to the place in Axtell. We are of the opinion that a jury question on such issue was presented by the evidence. Blanks v. First Nat. Bank, Tex.Civ.App., 44 S.W.2d 393, pars. 2 and 4, writ refused; Chalk v. Daggett, Tex.Com.App., 257 S.W. 228, 231, par. 3, and authorities there cited; Baum v. Williams, 16 Tex. Civ.App. 407, 41 S.W. 840, writ refused and authorities there cited; Parker v. Schrimsher, Tex.Civ.App., 172 S.W. 165, pars. 7 and 9, writ refused; Wiener v. Zweib, Tex.Civ.App., 128 S.W. 699, pars. 2 and 3, affirmed 105 Tex. 262, 141 S.W. 771, 147 S.W. 867; Houston Chronicle Publishing Co. v. Allen, Tex.Civ.App., 70 S.W.2d 482, pars. 1 and 4; City Nat. Bank of Bryan v. Walker, Tex.Civ.App., 111 S.W.2d 350.

Appellant pleaded abandonment by appellee of said 203 acre tract as his homestead as an affirmative defense, and at the proper time, requested the court to...