Gann v. Montgomery

• Decision Date: 19 March 1948
• Docket Number: No. 14919.,14919.
• Citation: 210 S.W.2d 255
• Parties: GANN et al. v. MONTGOMERY et al.
• Court: Texas Court of Appeals

210 S.W.2d 255

GANN et al. v. MONTGOMERY et al.

No. 14919.

Court of Civil Appeals of Texas. Fort Worth.

March 19, 1948.

Rehearing Denied April 16, 1948.

Appeal from District Court, Tarrant County; Thomas J. Renfro, Judge.

Action by Georgia Marie Gann and husband against Sully Montgomery, sheriff, and others to restrain execution on a judgment. From an order denying the injunction and dismissing the cause, plaintiffs appeal.

Affirmed.

Doyle H. Willis and Oliver W. Fannin, Jr., both of Fort Worth, for appellants.

Tom R. Mears and Byron L. McClellan, both of Gatesville, for appellees.

McDONALD, Chief Justice.

On February 20, 1948, we reversed the order of the trial court dismissing this cause, and remanded the cause for further proceedings not inconsistent with our opinion. Upon further consideration, we have concluded that the judgment of the trial court ought to be affirmed. We hereby withdraw our former opinion, and write this as our opinion in the case.

James P. Gann and his wife owned a house trailer, mounted on wheels, of the type usually pulled behind an automobile. It was equipped with built-in beds, dinette stove, ice-box and cook stove. They and their two children had lived in it for two and a half years next prior to the time of the trial, and had no other home. About the first of January, 1947, they brought the trailer to Mexia, where Mr. Gann's parents were living in a rented home. They received permission from Mr. Gann's parents to park the trailer in the parents' back yard, and it was orally agreed that they might leave it there while Mr. Gann looked for a job. On January 21, 1947, Mr. Gann executed a note for approximately $1,200 to L. E. and R. E. Todd, and to secure its payment executed a chattel mortgage on the trailer. The note and mortgage were assigned to H. B. Chandler, who later brought suit thereon in the 54th District Court of McLennan County, and recovered judgment ordering a foreclosure of the chattel mortgage lien. Order of sale was issued and placed in the hands of the Sheriff of Tarrant County for execution. In the meantime Mr. Gann had entered the United States Army, and at the time of trial was stationed at Fort Worth Army Airfield, in Tarrant County. His family still lived in the trailer, which was, at the time the present suit was brought and at the time it was tried, parked on land belonging to said Airfield. Mrs. Gann did not sign the note and mortgage, and was not made a party to the foreclosure suit in McLennan County.

On September 2, 1947, Mrs. Gann, joined by her husband, brought the present suit in the 96th District Court of Tarrant County, naming H. B. Chandler and the Sheriff of Tarrant County as defendants. The relief sought was a temporary restraining order, a temporary injunction, and a permanent injunction to restrain the defendants from selling the trailer, on the ground that it was the homestead of Mrs. Gann and her family when the mortgage was executed, and that the mortgage was therefore void under the provisions of Article 16, Section 51 of the Constitution of Texas, Vernon's Ann.St.

On October 7, 1947, the cause came on to be heard on plaintiff's application for a temporary injunction, at the conclusion of which hearing the court entered an order declaring that the house trailer was personal property and was not exempted as a homestead under the Constitution of the State of Texas; and further declaring that since plaintiff did not comply with the provisions of Article 4643 of the Revised Civil Statutes, the application for temporary injunction should be denied and that the cause should be dismissed.

Mrs. Gann and her husband have appealed from such order.

Art. 4656 provides that writs of injunction granted to stay proceedings in a suit, or execution on a judgment, shall be returnable to and tried in the court where such suit is pending, or such judgment was rendered. Art. 4643 provides that an injunction may be granted under certain conditions by a judge of a court other than the court to which such injunction is returnable, but, as found by the trial court, plaintiff failed to bring herself and her case within the provisions of art. 4643.

Mrs. Gann was not a party to the foreclosure suit. If the property sought to be sold under the order of sale was her homestead at the time the mortgage was given, she was not precluded from bringing the injunction suit in a court other than that in which the judgment of foreclosure was rendered. See Long v. Knott, Tex.Civ.App., 203 S.W. 1127, writ dismissed; and Carey v. Looney, 113 Tex. 93, 251 S.W. 1040, for full discussion of the applicable rules. But if the property was not subject to the homestead claim, then she was bound by the judgment rendered in the suit in McLennan County, and was virtually a party thereto. 23 Tex.Jur. 336. In such latter event the proper order to be entered by the Tarrant County court would be one dismissing the suit. Murph v. Bass, Tex.Civ.App., 276 S.W. 767; Citizens' Bank v. Brandau, Tex.Civ.App., 1 S.W.2d 466, writ refused; Honea v. Graham, Tex.Civ.App., 66 S.W.2d 802.

The controlling question in the case, therefore, is whether or not the trailer was a homestead within the meaning of the Constitution.

"Homestead rights have their origin in constitutional and statutory provisions and not in the common law." 40 C.J.S., Homesteads, § 2.

"There are no exemptions except those provided by law. * * * The courts have always given a liberal construction to the Constitution and Statutes to protect the homestead rights. However, the courts cannot protect that which is not homestead * * *." Whiteman v. Burkey, 115 Tex. 400, 282 S.W. 788.

"The exemption is, in terms, of lots or acres of land; but the object was to secure the family a home. `House' is necessarily embraced in the word `homestead.'" Cullers v. James, 66 Tex. 494, 1 S.W. 314, 315. "A homestead is the dwelling house constituting the family residence, together with the land on which it is situated and the appurtenances connected therewith." 40 C.J.S., Homesteads, § 1. Referring to the meaning of the term homestead, it is said in Thompson on Real Property, Perm.Ed., Vol. 2, Sec. 967, "In this sense it means that tract of land which being within the statutory limitations both as to quantity and value is held, occupied, and claimed as a homestead, and includes as an indispensable part thereof the dwelling-house or family residence." In 40 C.J.S., Homesteads, § 52, it is said: "The right of homestead is generally regarded as incidental to an interest in land, rather than to buildings considered apart from the soil; but it attaches to the structure erected on exempt premises and to fixtures permanently annexed to the realty."

The claim of homestead exemption does not depend on unqualified fee ownership of the land involved. We quote the following from the opinion in First Nat. Bank v. Dismukes, Tex.Civ.App., 241 S. W. 199, 200: "Hence, giving effect to the plain intent of the Homestead Act, any possessory interest in a lot or lots, the fee-simple title not being required to support it, coupled with the requisite occupancy by the husband and his family, is sufficient to support a homestead claim. Consequently, if any possessory interest in the lot or lots less than the fee-simple title is sufficient to entitle a claimant to the benefits of the provisions of the Homestead Act [Vernon's Ann.Civ.St. art. 3833], it follows logically that the homestead right and privilege attaches to a tenement or building, coupled with the requisite occupancy, erected upon leased or rented premises. Cullers v. James, supra; Low v. Tandy, 70 Tex. 745, 8 S.W. 620; Phillips v. Warner [4 Willson, Civ.Cas.Ct.App., § 147], 16 S.W. 423 [Anheuser-Busch]; Brewing Ass'n v. Smith, Tex.Civ.App., 26 S.W. 94; Ellis v. Bingham, Tex.Civ.App., 150 S.W. 602."

Appellant argues that the requirements of the law were met in her case by reason of the fact that Mr. Gann's parents had orally given him permission to park the trailer in their back yard for such time as he wished to leave it there. In view of the holdings in such cases as Massillon Engine & Thresher Co. v. Barrow, Tex.Com.App., 231 S.W. 368; Rettig v. Houston West End Realty Co., Tex.Com.App., 254 S.W. 765; Johnson v. Prosper State Bank, Tex. Civ.App., 125 S.W.2d 707, affirmed by the Supreme Court, 134 Tex. 677, 138 S.W.2d 1117, it is doubtful if Mrs. Gann and her husband had such a possessory interest in the portion of his parents' premises occupied by the trailer as would support a claim of homestead exemption. The possession of Mrs. Gann and her husband at best was only co-extensive with that of his parents. The question involved is fully discussed in the opinions just cited.

Assuming for the purpose of argument that appellant did have such possessory interest in the land upon which the trailer was parked as would support the homestead claim, we must decide whether the trailer was such type of structure as to come within the rule which regards the house as part of the land, within the contemplation of the constitutional provision.

In 26 Am.Jur., p. 23,...