Farmer v. Hale

• Decision Date: 13 June 1896
• Citation: 37 S.W. 164
• Parties: FARMER v. HALE et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

37 S.W. 164

FARMER v. HALE et al.¹

Court of Civil Appeals of Texas.

June 13, 1896.

Appeal from district court, Tarrant county; W. D. Harris, Judge.

Action by E. Farmer against Phillip H. Hale and E. A. Euless to enjoin the sale of certain land on execution on the ground that the same constituted plaintiff's homestead. From a judgment in favor of defendants, plaintiff appeals. Reversed.

Robt. S. Blair, for appellant. B. P. Eubank, for appellees.

HUNTER, J.

This suit was filed by the appellant on December 1, 1894, in the district court of Tarrant county, against Phillip H. Hale and E. A. Euless, the latter being sheriff of Tarrant county, to enjoin the sale of 37 acres of land lying within one-quarter of a mile of Birdville, a small village in Tarrant county, which had been levied upon by the sheriff under an execution issued from a justice's court on a judgment against the appellant, E. Farmer, in favor of Phillip H. Hale, for the sum of $152.50 and costs of suit, which judgment had been, on October 2, 1894, abstracted according to law in the abstracts of judgments. The ground upon which the injunction was sought was that the property was the homestead of appellant, and had been since the year 1869, at which time the appellant purchased the property in controversy, and resided thereon with his wife and child, and used the same as a homestead, until the year 1879. While living upon the premises, he used part of it for making crops and farming purposes and a portion for pasturage, and he also practiced medicine while living thereon. The appellees contend that he abandoned the premises and acquired another homestead at Birdville in the year 1879, and that by reason thereof the property became subject to execution. In reply, appellant contends that he rented the premises temporarily, not with the intention of abandoning them as a home, but always intending to return to them, and that he only left them for the purpose of more conveniently locating himself in the practice of his profession.

The case was tried by the court without a jury, and we find from the conclusions of fact found by the court below and the statement of facts contained in the record the following facts: Appellant, being a married man, in 1869 purchased the property described in his petition, and about that time moved upon it, and resided on the same, using it for the purposes of a home, until the year 1879. He used it partly for farming and partly as a pasture, having also his dwelling house and outhouses thereon, and during which time he was a practicing physician. In the year 1879, in order to more conveniently locate himself to practice his profession, he bought a lot in Birdville, a small village in Tarrant county, one-quarter of a mile from his home, and moved on to it, and temporarily rented out his homestead aforesaid, retaining, however, the use of the pasture, and continued to reside at Birdville until the year 1892, either renting his homestead every year, or having it cultivated by hired labor, and also using the pasture for his horses and other stock. His wife died in the year 1880, his child having died prior thereto. His sister lived with him, kept house for him, and was dependent upon him for support. He remained on this property at Birdville until 1892, when he sold it, and rented a house in North Ft. Worth, to which he moved with his sister, and continued the practice of his profession, intending, as he declared, to ultimately return to the property in question, which he always spoke of as his home. While living in Birdville, in 1880, parties offered to purchase the premises in controversy, when appellant declined to sell, saying he intended to keep it as a home to fall back on, if necessary; and while residing in North Ft. Worth, during the years 1893 and 1894, he expressed his intention of moving back to this property, speaking of it as his home. Birdville is a small, unincorporated village, but laid off into lots and blocks and streets, contains two stores, two blacksmith shops, a church and schoolhouse, and a post office, and about a dozen families reside in the boundaries as laid off. This has been about the status of the village...