Garcia v. Uveda

• Decision Date: 24 October 1917
• Docket Number: (No. 5896.)
• Parties: GARCIA v. UVEDA.
• Court: Texas Court of Appeals

198 S.W. 167

GARCIA v. UVEDA.

(No. 5896.)

Court of Civil Appeals of Texas. San Antonio.

October 24, 1917.

Appeal from District Court, Duval County; V. W. Taylor, Judge.

Action between Sixto Garcia and Ramon Uveda. From a judgment for the latter, the former appeals. Reversed and rendered.

J. F. Clarkson, of San Diego, for appellant. S. H. Woods, of Alice, for appellee.

FLY, C. J.

A permanent injunction was obtained in this case by appellee against the sale of three certain lots of land in San Diego, Duval county, under and by virtue of a writ of execution issued out of the district court of that county and levied on the said three lots. The sale was enjoined, on the ground that the lots constituted the homestead of appellee. From that judgment this appeal has been perfected.

The facts show that in 1914 appellee bought 1,000 goats from appellant, giving in exchange therefor his storehouse, which was his homestead, and merchandise and a promissory note for $1,200. A balance due on that note formed the basis of the judgment obtained by appellant against appellee, under which the execution was issued and levied on lots 10, 11, and 12 in San Diego, for which appellee had traded a portion of the goats. The proceedings under the judgment were regular in every respect. The lots were purchased by appellee on June 1, 1915, and the execution was levied upon them on July 3, 1916, more than a year after the purchase. The lots were of the value of $300. Appellee is a married man, as found by the trial court, with "at least three children." At some time prior to January, 1916, appellee "caused the lots to be grubbed," paying for the labor the sum of $10.50. Nothing further was done about the lots until May, 1916, several months after the suit was instituted, when appellee made marks on the ground with a shovel or pickax, to indicate where he might at some time put post holes. After the execution had been levied upon the lots and the day of sale fixed, and five days after a temporary injunction had been issued restraining the sale of the lots, appellee began having post holes dug in order to erect a fence about the lots. The fence was built. Nothing whatever was done to the lots evidencing a desire to improve them, except the grubbing, which appellee swore was begun on June 14, 1915, before the property was seized under execution and the day of sale fixed. Appellee testified that he intended to make the lots his homestead as soon as he had the money to make improvements. He has no other real estate. No improvements had been put on the lots before the execution was levied, unless the grubbing was an improvement.

The courts of Texas have gone to the extent, in their desire to protect the homesteads of families, of dispensing with actual occupancy as a necessary concomitant to impress land with the homestead character, and extending such character to land when there has been shown an intention to make a homestead, accompanied with acts of preparing the land for actual occupancy. Mere intention at some future time to occupy a lot or parcel of land for homestead purposes, such occupancy being contingent upon financial ability to build improvements, would not constitute a homestead. There must be an intent to occupy the land concurring with acts of improvement indicating such intent within a reasonable time to occupy. Cameron v. Gebhard, 85 Tex. 610, 22 S. W. 1033, 34 Am. St. Rep. 832; Town Co. v. Grigg, 93 Tex. 456, 56 S. W. 49; Gallagher v. Keller, 4 Tex. Civ. App. 454, 23 S. W. 296; Johnson v. Burton, 39 Tex. Civ. App. 249, 87 S. W. 181; Parker v. Cook, 57 Tex. Civ. App. 234, 122 S. W. 419; Parsons v. McKinney, 133 S. W. 1085; Wiseman v. Watters, 142 S. W. 134; McDowell v. Northcross, 162 S. W. 16; Taylor Feed Pen Co. v. Bank, 181 S. W. 534, 535. The acts performed in connection with the unoccupied land claimed to be homestead are indicative, both of good faith, of the intent to occupy, and of a reasonable diligence to execute the...