Cooper Co. v. Werner

• Decision Date: 08 December 1937
• Docket Number: No. 8541.,8541.
• Parties: COOPER CO., Inc., v. WERNER.
• Court: Texas Court of Appeals

111 S.W.2d 823

COOPER CO., Inc., v. WERNER.

No. 8541.

Court of Civil Appeals of Texas. Austin.

December 8, 1937.

Rehearing Denied January 5, 1938.

Appeal from District Court, Milam County; Graham Gillis, Judge.

Action by the Cooper Company, Inc., against E. P. Werner and Leo J. Werner, individually and as members of Werner Brothers, a copartnership, and against Mrs. Jennie A. Werner, wherein a writ of attachment was issued and certain property was attached. From a judgment in favor of last-named defendant, plaintiff appeals.

Affirmed.

Nat Harris and Mabel Grey Howell, both of Waco, for appellant.

Henderson, Kidd & Henderson, of Cameron, for appellee.

BLAIR, Justice.

The issue on this appeal is as to the business homestead vel non; the claim of homestead being set up to defeat the lien of a writ of attachment. The facts show that appellant, the Cooper Company, Inc., sued E. P. Werner and Leo J. Werner, individually and as members of Werner Bros., a copartnership, and recovered judgment for goods, wares, and merchandise sold to them in the sum of $1,161.76. At the time of the filing of the suit, appellant caused a writ of attachment to issue and the property herein involved was attached thereunder. Appellant also sued appellee, Mrs. Jennie A. Werner, the mother of the said E. P. and Leo J. Werner, alleging that they, by deeds dated July 13, 1935, and duly recorded, conveyed to her their interest in the attached property, for the recited consideration of $1 and love and affection; and that the conveyance was made for the purpose of defrauding these creditors, and the prayer was for its cancellation. A trial to the court resulted in a finding that the property was the business homestead of E. P. and Leo J. Werner at the time they conveyed it to their mother, and judgment was accordingly rendered for her.

Counsel for appellant concisely states the issue here presented, as follows: "The only question presented on this appeal is whether or not the business property described in plaintiff's petition or rather the interest therein, of E. P. Werner and Leo J. Werner, constituted their business homestead at the time of the execution of the several deeds to Mrs. Jennie A. Werner? If the several interests of E. P. Werner and Leo J. Werner, under the law, were appropriated to the purpose of a business homestead, within the meaning of the Constitution or the statute, then the conveyance to their mother would not come within the provision of the Fraudulent Conveyance Statutes of Texas."

More specifically appellant contends that the property interest conveyed by E. P. and Leo J. Werner to their mother was not their business homestead at the time of the conveyance, upon the following grounds:

(1) Because there was no evidence adduced showing that the business property in suit, or any residence property of either E. P. or Leo J. Werner, or when considered with the business property in their entirety, did not exceed the value of $5,000 at the time of the appropriation of same for homestead purposes.

(2) Because the evidence showed no immediate right of possession in either E. P. or Leo J. Werner at the time they undertook to appropriate same as their business homestead but showed the right of possession to be in the mother, appellee here, who rented same to them.

(3) Because, by a credit statement to appellant, E. P. and Leo J. Werner dedicated their interests in the business building to their joint undertaking or partnership business, they were estopped to claim the property to be their individual business homestead; and were also estopped to claim same as homestead in any event.

Neither of these contentions is sustained. The evidence showed that the business property in suit is situated in the city of Cameron, Milam county, Tex. It consists of a lot with a brick business house erected thereon. The property was conveyed to F. J. Werner, the husband of appellee and the father of the said E. P. and Leo J. Werner, in 1910, and was community property. F. J. Werner died intestate in 1915, leaving as survivors his wife, the appellee, and their three children, E. P. and Leo J. Werner and one daughter, Mrs. Mary Werner Kosh. No administration was ever had on the estate of F. J. Werner. Neither he nor his wife after his death ever occupied or used the building as homestead. Prior to 1930, it was rented for 16 or 17 years to J. D. Dobbins, at a rental of $100 or more per month. Dobbins used the building in carrying on his grocery business. In 1930, he became insolvent and E. P. and Leo J. Werner purchased his bankrupt stock located in the building. At the time they purchased this stock and began the operation of their partnership grocery business there, they each owned an undivided one-sixth interest in the property through inheritance from their deceased father. As to their right of possession, E. P. Werner testified that at the time he and his brother purchased the bankrupt stock in the building, they began the operation of their business therein; and further testified that: "As we had an interest in the estate and building, we just told mother that we were going to buy the stock out and conduct a business in there. * * * We told mother we would pay her a reasonable rental on the building in order that she may be able to pay the taxes, insurance, repairs and upkeep. * * * What I meant (when first on the stand) by the control was that by the agreement she was to pay the taxes, insurance, repairs and upkeep in that manner."

On cross-examination said witness testified:

"Q. You rented the building from your mother? A. We just told her that we were going to use the building.

"Q. Got her permission? A. No, sir. We had an interest in the building.

"Q. You told her that? A. Yes, sir.

"Q. You told her that at the time? A. Yes, sir."

The evidence further showed that E. P. Werner married in 1923; that Leo J. Werner married in 1933; and that each was the head of a family and continued the operation of their grocery business in the building from that time until after they conveyed their respective interests to their mother, appellee, in 1935. The evidence dealt fully with the homestead rights of the Werners in the business building, but no mention was made of a residence homestead of either of them; and no such homestead right was asserted by either of them. A financial statement made by them to appellant, about one month before they conveyed their interest in the building in question to their mother, listed this business property as the joint property of their mother, their sister, and themselves. They also listed a residence in west Cameron, valued at $1,500, which under the evidence was evidently the homestead of their mother, and a "rent" house, valued at $1,000. The business house in suit was valued in the statement at $10,000. There was no other evidence as to its value at the time it was appropriated to homestead use by E. P. and Leo J. Werner, and the only homestead rights claimed by them was as to their respective interests in the business property. Appellant neither pleaded nor proved that the homestead property claimed by either E. P. or Leo J. Werner exceeded the value of $5,000 when appropriated to homestead use. Nor did appellant plead any character of estoppel on the part of the Werners because of the financial or credit statement made to it.

This evidence established that E. P. and Leo J. Werner had each appropriated his interest in the property in suit to business homestead purposes. The trial court could have reasonably inferred from the credit statement of the Werners to appellant, which was introduced by it, and...