Ewing v. Riley

• Decision Date: 08 November 1922
• Docket Number: (No. 6821.)
• Parties: EWING v. RILEY et al.
• Court: Texas Court of Appeals

246 S.W. 94

EWING v. RILEY et al.

(No. 6821.)

Court of Civil Appeals of Texas. San Antonio.

November 8, 1922.

Rehearing Denied January 3, 1923.

Appeal from District Court, Hidalgo County; Norman B. Kittrell, Special Judge.

Action by John W. Ewing against George I. Riley and another. From a judgment for defendants, plaintiff appeals. Reversed and remanded.

McDaniel & Bounds, of McAllen, for appellant.

D. F. Strickland, of Mission, and Gordon Griffin, of McAllen, for appellees.

SMITH, J.

The judgment appealed from was based upon the conclusion of the court below that the land in controversy was the homestead of G. I. Riley, the record owner thereof, and therefore not subject to attachment by a creditor. This holding presents the only material question in the case. If the property was in fact the homestead, the judgment must be affirmed; if it was not, the judgment must be reversed.

The record shows that prior to March, 1920, John W. Ewing owned and farmed a tract of 60 acres of land lying adjacent to, but wholly without, the corporate limits of the city of McAllen, in Hidalgo county. About this time there was a building boom in McAllen, resulting in extending the settled residential section to the city limits adjoining Ewing's property. In response to the apparent opportunity, Ewing had his 60 acres surveyed and cut up into blocks and lots, streets and alleys, and platted into "Ewing's addition to the city of McAllen." The arrangement of the blocks, lots, streets, and alleys was made to conform to the general plan of the adjacent city. About this time Ewing sold to George I. Riley, in two transactions, about two-thirds of the property, amounting to a little more than 40 acres. In the deeds of conveyance the property was described, not as acreage, or by metes and bounds, but by blocks and lot numbers, and these instruments contained certain building restrictions usual to modern urban residence additions, in which, among other restrictions, was a prohibition against, the erection of dwellings costing less than $3,000, and requiring that such dwellings should not be erected unless the plans thereof were first approved by Ewing. When, under these conveyances, Riley obtained possession of the property, he proceeded at once towards placing it upon the market for sale. He had the plat of the addition recorded, thus dedicating it. He tore down the fences which had inclosed it. He covered up the irrigation ditches which traversed it, and leveled off its surface. He laid off and marked the lots and blocks with painted stakes. He had printed 150 abstracts of the title to the property, as well as a like number of blank "earnest money" contracts, each covering "lot ____, block ____, Ewing's addition," etc. He even entered into a contract to pave some of the streets across the property. He offered the lots for sale, and sold a number of them. The building boom soon abated, however, and the anticipated demand for Riley's lots did not materialize substantially, and so, in the winter of 1920, and spring of 1921, he planted and cultivated crops on part of the land, using the balance for pasture purposes. In the early spring of 1921 he began negotiations for the sale of the land in bulk, and on April 26 entered into a contract for its sale to one Kincaid, in which the land was described, not as acreage, but as blocks and lots in the Ewing addition, and incorporated in the contract and subsequent deed the building restrictions embraced in the conveyance to him, as he had done in the sale of the several smaller tracts he had sold off. He then moved with his family to South Dakota, where they had other interests. Riley and his family, at no time actually lived upon the land in controversy, or upon any property owned by him. He and his family, on the contrary, dwelt in houses rented from others, a part of the time several blocks distant from, and the balance of the time on a block adjoining, his own property. There were, in fact, no improvements upon his own land in controversy here.

Now, when Riley purchased the first batch of lots from Ewing, he paid only part of the consideration in cash, giving vendor's lien notes for the balance. But, when he purchased the other batch of lots, he paid all cash therefor, and these lots comprise the property here involved. Riley defaulted in the payment of the notes due upon the first purchase, and Ewing sued upon these notes and for foreclosure of the vendor's lien, and in the same action procured a writ of attachment upon the second batch of lots. In the trial, judgment was rendered for the debt, and for foreclosure of the vendor's lien, but denying foreclosure of the attachment lien, upon the ground that the property attached constituted Riley's rural homestead. From this judgment Ewing, the lienholder, brings this appeal.

The first question presented is whether the land in controversy was rural or urban, whether it constituted Riley's urban homestead, or rural homestead. In our view of the case, it is unnecessary here to decide this question, and we do not expressly do so, unless, indeed, such decision is made when we declare the rule to be that, where the home of the person claiming the exemption is located within or adjacent to an unincorporated town or village, the question of whether it is a rural or urban homestead is one of fact, to be determined from the location of the premises with reference to the settled portions of the town, the nature and character of the property, the uses to which it is put, and like considerations (Iken v. Olenick, 42 Tex. 195; Nance v. Johnson, 84 Tex. 401, 19 S. W. 559); whereas, if the home, when acquired, is adjacent to or within the defined limits of an incorporated town or city, the character of the homestead is determined by the location of the corporate limits. If the home is without such limits, it constitutes a rural homestead; if within, it is an urban homestead. If the land claimed as a homestead lies partly within and partly without the city limits, then the location of the dwelling or "mansion house" determines the character of the homestead, and that portion of the land lying upon the opposite side of the line from the home site constitutes no part of the homestead, and is not exempt, since no homestead may be invested with the dual character. Iken v. Olenick, supra; First Nat. Bank v. Jones, 244 S. W. 1057, decided by this court on November 1, 1922.

We are of the opinion, however, that under the facts as we have stated them, as disclosed in the record, the land in controversy was not shown to be the homestead of the Rileys. As stated, they at no time actually resided upon the land, or upon any land owned by them. They had their actual domicile upon other premises, which they leased for that purpose from others. They not only did not erect any house or dwelling place or any sort of improvements upon the land, but never made any preparations to that end and, so far as the record shows, they never had any intention of improving the premises for the purpose of making their home thereon, or for any other purpose, and never intended doing so at any time in the...