Ellisor v. Ellisor
| Decision Date | 28 January 1982 |
| Docket Number | No. 17893,17893 |
| Citation | 630 S.W.2d 746 |
| Parties | Alma Sue ELLISOR, Appellant, v. C. M. ELLISOR, et al, Appellees. (1st Dist.) |
| Court | Texas Court of Appeals |
Michael S. Tomasic, Houston, for appellant.
W. T. Bennett, Houston, Kenneth H. Keeling, Huntsville, for appellees.
Before EVANS, C. J., and WARREN and DOYLE, JJ.
Appellees, C. M. Ellisor and wife, Irene Ellisor, brought suit against their son and his wife, Matthew Ray Ellisor and Rebecca Ellisor, as well as their other son, and his wife, Jerry Clayton Ellisor and Alma Sue Ellisor, also known as, Sue Ellisor, to determine ownership in certain real property and associated indebtedness. The court, based on the jury's verdict, rendered judgment generally for the C. M. Ellisors; imposed a constructive trust on certain described property which the Jerry Clayton Ellisors claimed as their homestead; and appointed a receiver to sell the property and divide the net proceeds between the parties. Appellant, Alma Sue Ellisor, is the only party to appeal the judgment. She limits this appeal to the portions of the judgment which affect her interests in the various real property, especially the Westridge property, claimed as her homestead. She also challenges the alleged indebtedness owed to appellees.
Appellant had filed for divorce prior to this action and has subsequently been granted a divorce which was pending at the time this cause of action was tried. She has an appeal pending from the divorce action in the Fourteenth Court of Appeals.
Appellant, in her first three points of error, complains of the trial court's disposition of the Westridge property, arguing that the court erred in: (1) imposing a constructive trust; (2) awarding title and possession to appellees and Sue and Jerry Ellisor; (3) vesting legal title of the property in a receivership; and (4) ordering that the property be sold. The basis of appellant's argument is that the above property was homestead property and that the statutory and constitutional provisions requiring a writing to be signed by both spouses to sell, convey or encumber homestead property were not complied with. Appellant further argues that she did not sign any writing encumbering the property and that any agreements concerning the property were oral agreements between her father-in-law and her husband only. Appellant's contentions are based on her assumption and conclusion that the subject property is homestead property. Appellees, contend that their interest in the subject property arose as a result of a joint venture between C. M. Ellisor and Jerry Clayton Ellisor.
The law is clear that the burden of proving a homestead is upon the party claiming homestead. Burk Royalty Company, et al v. Riley, et al, 475 S.W.2d 566 (Tex.1972). The facts in the instant case reveal that at the time the subject property was acquired appellant and Jerry Ellisor were married and living together. It is settled law in this state that to establish a homestead claim, there must be proof of concurrence of usage and intent on the part of the owner to claim land as homestead and that the husband, as head of the family, selects its homestead. Burk, supra. The record does not show that at the time the subject property was acquired, Jerry Ellisor intended that the property would be the family's homestead. There is sufficient evidence to support the jury's findings that Jerry Ellisor purchased the subject lot as a result of a joint venture agreement between him and his father. The following evidence supports the jury's findings of a joint venture relationship (1) Appellant and Jerry Ellisor lived in a dwelling rent-free belonging to the father in Walker County for 2 years. After the father sold the property, he placed the $11,000 proceeds from the sale with Jerry Ellisor to be held until a new dwelling was built. The pledge of joint venture was made at that time. Jerry Ellisor spent $4,000, leaving $7,000 for a new dwelling.
(2) The father by agreement with Jerry Ellisor bought a trailer home with the $7,000. Appellant and Jerry Ellisor lived there rent-free until the trailer was sold.
(3) The father next built a dwelling costing.$19,000 all paid for by him. After its completion, appellant and Jerry Ellisor moved in and lived there rent-free. On March 30, 1978, the father sold this dwelling,...
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