Garrard v. Henderson, 13911.

• Decision Date: 13 February 1948
• Docket Number: No. 13911.,13911.
• Citation: 209 S.W.2d 225
• Parties: GARRARD et al. v. HENDERSON et al.
• Court: Texas Court of Appeals

209 S.W.2d 225

GARRARD et al. v. HENDERSON et al.

No. 13911.

Court of Civil Appeals of Texas. Dallas.

February 13, 1948.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Dallas County; Sarah T. Hughes, Judge.

Suit by George E. Henderson and others against Marie Garrard and another to recover money fraudulently obtained upon a written contract for purchase of household furniture and for appointment of a receiver, wherein several other parties filed separate interventions against defendants based on similar transactions. From an adverse judgment, defendants appeal.

Judgment affirmed in part and in part reversed and rendered.

Otis Bowyer, Jr. and Albert S. Reagan, both of Dallas, for appellants.

F. W. Bartlett, Jr. and Horace G. Goodrich, both of Dallas, for appellees.

BOND Chief Justice.

This suit was instituted on June 3, 1947 by plaintiff George E. Henderson; subsequently seventeen other parties filed separate interventions against defendants Marie Garrard and Herman Garrard, jointly and severally, for their respective debts growing out of separate similar transactions entered into by each of the parties with the defendant Marie Garrard, and for approximately the same amount, aggregating the sum of $21,250; each party victimized by entering into a written contract with the defendant Marie Garrard for the purchase of certain designated household furniture in an apartment belonging to and occupied by the said defendant Marie Garrard and her minor son, Herman Garrard, located at 4837 Worth Street, in the City of Dallas, Texas. Each of the several parties paid the consideration recited in his contract for the same furniture, and upon the following defeasible covenant and agreement, as follows: "If for any reason the apartment is not available for occupancy by the above party concerned in this transaction on or before ____, the above amount of ____ to be returned in full, otherwise this becomes a complete and final bill of sale upon the date of occupancy by the parties concerned in this contract, and is subject to the rental agreement." The rental agreement and list of furniture was attached to each of the contracts. The apartment was never made available to any of the contracting parties, nor was the furniture delivered or the consideration paid therefor refunded to them.

In this suit plaintiff and interveners each sought separate judgment for the amount each advanced as shown in the aforesaid contract and for appointment of a receiver to take charge of the apartment, collect all rents due by the various tenant-lessees occupying the four units in the apartment, to sell the apartment and apply the proceeds of sale to the satisfaction of the respective debts. In brief, each of the separate causes of action is sounded in tort growing out of the aforesaid contracts.

The court, trying the case without a jury, rendered judgment against defendant Marie Garrard, on her confession of liability made in open court, in favor of the plaintiff and each of the interveners for the full amount of their respective debts, from which there is no appeal; and the court entered judgment against the defendant Herman Garrard for the sum of $1,200 "to be divided ratably between parties plaintiff and parties intervener", from which Herman Garrard, through his guardian ad litem, has appealed. The court further decreed that the property known as 4837 Worth Street, in Dallas, was not a homestead of the defendant, basing the conclusion on the ground that "Herman Garrard having been self-supporting for sometime prior to the purchase of the property involved herein, he cannot be claimed as being a dependent in order to entitle Marie Garrard to a homestead exemption"; and that "Marie Garrard having used the apartment house and furniture in the furtherance of a scheme and a business to defraud innocent persons, she cannot now claim it as a homestead, exempt from these persons she defrauded"; hence the court appointed a receiver to administer the estate of the defendant Marie Garrard, sell the apartment house and premises, and all of the listed furniture, at private or public sale in order that the parties in suit may be compensated on a ratable basis. To which last decrees each of the defendants excepted, gave notice of and duly perfected their appeal. The court upon request filed findings of fact and conclusions of law. They were duly excepted to by appellants. A complete statement of facts accompanies this record.

The testimony, as shown from the agreed statement of facts, is undisputed: In June 1944, appellant Marie Garrard, then a widow, purchased a four-unit apartment located at 4837 Worth Street, in the City of Dallas. She owned no other property nor has she purchased any since. Soon after purchasing said property, Mrs. Garrard and her son Herman Garrard, then seventeen years of age, who had never married and who at that time had never had a gainful occupation, moved into the house, occupying the unit designated in the record as No. 2, and ever since said time the two have been occupying and using it as their home. At the time Mrs. Garrard purchased and moved into the apartment, June 1944, Herman was then, and had been all of his life, living with his mother as a constituent member of her household, each supplying the needs and maintenance of the home to the extent of their means, living together in a common interest, having a common object, subsisting in common, and directing their attention to the promotion of their mutual interests and social welfare. The record shows that the son was always obedient to the commands of the mother; and he and the mother each shared in the woe and weal of the other, as the son testified: "Everything we did, we did together * * * I mean we have always shared everything alike * * * We have always been pretty close together * * * I have never tried to hide anything from her * * * I don't know whether she ever tried to hide anything from me." Herman, during the years of his early youth and prior to the purchase of the aforesaid property by his mother, owned no property, other than an interest in some furniture that he claimed to have purchased. He had credit rating with a furniture store, where he purchased the furniture. Herman relied on his mother, after the death of his father in 1929, for his support, care, nurture and well being. She supplied all of his needs, raiment, food and lodging, until in November 1944, when Herman was inducted into government military service, the Navy; thus, in line of duty he left his mother's home for the duration of War II; but, however, carried on his social relationship with his mother, writing her daily and causing $50 monthly benefit allowance to be deducted from his salary and allotment from the Government for her use and benefit. In February 1946, Herman was discharged from government service, came back to the home of his mother, at 4837 Worth Street, Dallas, Texas, where he has been living ever since, and was living at the time of the institution of this suit.

Appellants contend as ground for reversal that the uncontroverted testimony was sufficient to show that the relation between Marie Garrard and her minor son was of such a character as to constitute their association "a family," and that the mother was the head thereof as a matter of law; that the court was without power to appoint the receiver, divesting title and possession of the homestead out of the defendants, thus according a preferential right to the defrauded creditors whose debt or claims were unenforceable against the property which had been occupied under circumstances giving rise to the homestead right in the family.

The only real contest in this appeal is as to the homestead character of the property, growing out of the relationship and association of the mother and minor son at the time of the purchase and occupancy of the apartment in question and which had never been abandoned or waived. Our Supreme Court has held that the family relation is one of status; that there must be legal or moral obligation on the head of the family to support the other member or members and there must be a corresponding dependence on the part of such member or members for support; ...