Foley v. Holtkamp

• Decision Date: 17 February 1902
• Citation: 66 S.W. 891
• Parties: FOLEY v. HOLTKAMP et ux.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

66 S.W. 891

FOLEY v. HOLTKAMP et ux.¹

Court of Civil Appeals of Texas.

February 17, 1902.

Appeal from district court, Harris county; Wm. H. Wilson, Judge.

Action by Otto Holtkamp and wife against John J. Foley. From a judgment in favor of plaintiffs, defendant appeals. Affirmed.

O. T. Holt and L. B. Moody, for appellant. McDaniel & West, for appellees.

GILL, J.

This suit was brought by appellees, Holtkamp and wife, to recover the title and possession of a piece of real estate, and to cancel a sheriff's deed under which appellant, Foley, claimed to own it. Appellant answered by general denial and plea of not guilty, and asked, in reconvention, for title and possession. A jury trial resulted in a judgment for appellees, from which Foley prosecutes this appeal.

Appellant claims the property under sheriff's sale made by virtue of an order of sale issued on a judgment foreclosing an attachment lien in favor of appellant in a suit against Holtkamp for debt. The appellees claim that the property was their homestead at the date of the levy and sale, and was therefore exempt. The question of homestead vel non is the controlling issue in the case. The jury, in response to special issues submitted, answered that appellee, on and prior to the date of the levy, intended in good faith to occupy the land as a home; that he had, prior to that date, done preparatory acts which indicated beyond doubt that he intended to improve the place and use it as a homestead; that these acts consisted of employing one Priest to fence the property; that he had taken actual possession of it as a home about May 15, 1901; and that, considering all the circumstances, this followed within a reasonable time after the intention so to do was formed. The testimony in behalf of appellee Otto Holtkamp showed: That he was a married man, and owned no other home than the property in controversy. That he had purchased the vacant lot in 1881, prior to his marriage. Subsequently he moved to Austin county, where he lived for 12 years. From Austin county he went with his family to Deming, N. M., where he lived a year and a half. While there he formed the intention to make the land in controversy his home, and moved back to Harris county, where the land was situated, and went into the grocery business, renting a dwelling in Houston. He then employed Priest to fence the property, and arranged for the purchase of the material. He also consulted a contractor as to the erection of a dwelling thereon and intended to put down a well; but, before the fence was begun, Kuhlman & Kolbow took possession of the property, claiming it as their own, and proceeded to place a fence around it. Thereupon Holtkamp instituted a suit against Kuhlman & Kolbow to recover the property. This was in 1895, and the suit was not tried until 1898. On March 23, 1898, after judgment was rendered in favor of Holtkamp, a motion for new trial was overruled. Notice of appeal was given, and statement of facts prepared. No appeal was perfected, but on February 25, 1899, writ of error bond was filed. In this suit a half interest in the property was conveyed by appellees to their attorney as a fee. Holtkamp finally recovered the property, but, before the litigation ended, Foley attached it (September, 1898) for debt, as above mentioned, and the proposed improvement of it for a home was further postponed on the advice of appellee's attorney. It was sold under the foreclosure July 4, 1899; Holtkamp giving public notice at the sale that he claimed it as a home. The debt to Foley was incurred in the conduct of the grocery business at Houston, and was not secured by a lien on the property. Ten days before the trial, Holtkamp constructed upon the land a small, cheap house, in which two of his boys were living at the date of the trial; but it was not large enough for his family, and he, with the rest of his family, remained in the city, in rented premises. Prior to his suit against Kuhlman & Kolbow he had expressed to several persons his purpose to make it his home, and his purpose to do so was continuous thereafter, but active preparations were postponed on account of the litigation.

Appellant moved for a judgment upon the answers of the jury, but the motion was overruled. This is assigned as error. It is plain the court did not err in rendering judgment for appellant on the answers of the jury, for the jury found that appellees intended, in good faith, to occupy the premises as a home, made such preparations as clearly evinced such a purpose, and occupied it as such within a reasonable time thereafter; thus presenting every element which goes to make the homestead right. The judgment must conform to the verdict, and the trial court had no alternative. This disposes of the first two assignments, predicated upon the action of the...