Farmers' Nat. Bank of Seymour v. Coffman, 1372.

• Decision Date: 18 January 1935
• Docket Number: No. 1372.,1372.
• Citation: 79 S.W.2d 905
• Parties: FARMERS' NAT. BANK OF SEYMOUR v. COFFMAN.
• Court: Texas Court of Appeals

Page 905

79 S.W.2d 905

FARMERS' NAT. BANK OF SEYMOUR v. COFFMAN.

No. 1372.

Court of Civil Appeals of Texas. Eastland.

January 18, 1935.

Rehearing Denied February 8, 1935.

Appeal from District Court, Knox County; Isaac O. Newton, Judge.

Suit by W. W. Coffman against the Farmers' National Bank of Seymour. From a judgment for plaintiff, defendant appeals.

Reversed and rendered.

Stephens & Williams, of Benjamin, and James T. Montgomery, of Wichita Falls, for appellant.

D. J. Brookreson, of Benjamin, for appellee.

FUNDERBURK, Justice.

This suit was brought by W. W. Coffman to enjoin the sale of a 90-acre tract of land situated in Knox county about a mile from Goree, upon which execution had been levied and sale advertised, and which was claimed to be subject to a judgment lien in favor of Farmers' National Bank of Seymour, Tex., as successor in interest to the Vera State Bank. The plaintiff alleged substantially that on about the 10th day of March, 1931, he was, with his family, living on a 65-acre tract of land near Goree, which he had occupied as a farm homestead for many years; that at that time his aunt Mrs. Mary Coffman, died, having bequeathed to him an undivided one-eighth interest in her estate, consisting of several farms near Goree, and some town property; that as soon as the will was probated, in order to add to his existing 65-acre homestead, he began negotiations with the other heirs and devisees owning the remainder of said estate of his aunt to have the estate so partitioned as to locate his interest near his home, in order to add it to his homestead; that all of this he succeeded in doing, and had partitioned to him in lieu of his undivided interest in other tracts the 90 acres in question; that he had been claiming, using, and occupying it from said time as a homestead.

The jury to whom the case was submitted upon special issues found that, when plaintiff procured, by partition, the 90-acre tract in controversy, he intended to, and did thereafter, use same as an addition to his homestead. Upon that finding, judgment was rendered for Coffman, from which the defendant has appealed.

The only assignment of error necessary to be noticed is one contending that the court erred in refusing a peremptory instruction to find for the defendant.

Appellee, Coffman, owned and occupied a home consisting of 65 acres at the time of his aunt's death. There was prior to that time an abstract of judgment so recorded and indexed as to constitute a judgment lien (subject, of course, to any valid pre-existing liens, incumbrances, or exemptions) upon all real estate which said Coffman might there after acquire situated in Knox county. R S. 1925, art. 5449. Coffman did thereafter acquire, at his aunt's death, an undivided one-eighth interest in a number of different tracts of land in Knox county. Title vested immediately upon the aunt's death. R. S. 1925, art. 3314.

The situation of these several tracts of land with relation to each other, and to appellee's then existing homestead, was neither alleged nor shown by the evidence. The evidence does not show that appellee knew that his aunt intended to make him a bequest, or the nature of such bequest, or even that he knew she owned the several tracts of land. The only evidence regarding his intention to dedicate his interest in the said parcels of land as an addition to his existing homestead may be briefly stated as follows: He testified that after his aunt's death he got the other heirs to agree to a division so he could have the 90 acres; that his object in procuring the tract to be set apart to him was to add to his homestead; that since it had been awarded to him he had rented it out and used the feed rent to fatten his hogs and take care of his live stock, and used the cotton money for living expenses; that he had done work on the 90 acres; that he had not farmed, but had worked on the fence and repaired the improvements; that since he got it he had not plowed a furrow on it, had just rented it, received the oil rents from it, had never cultivated it, or worked it himself; that the rent he got off the land he used for feed for teams, hogs, and cows, and used the money for general living expenses. It was shown that the 90-acre tract in question was about a mile from the 65-acre home tract, and not contiguous to it. The town of Goree intervened.

The several tracts of land in which appellee acquired from his aunt an undivided interest, and which, by this suit, he seeks to have adjudged exempt as an addition to his homestead, not being contiguous to the home tract, are in relation to the question of exemption, governed by the same rules as land never occupied as the home of a family. Brooks v. Chatham, 57 Tex. 31. "Intent, in itself, will not impress the homestead character upon property, but such intent must be accompanied with a preparation, demonstrating such intent." Nunn on Homestead and Other Exemptions, p. 99. Benzel v. Commercial Nat. Bank (Tex. Civ. App.) 1 S.W.(2d) 695. While the rule is usually so stated, a more accurate statement of the law, it seems to us, applicable to a situation where one without a homestead seeks to establish the homestead character of property never actually occupied or used as...