Grimes v. Cline

• Decision Date: 11 November 1927
• Docket Number: (No. 3442.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 300 S.W. 235
• Parties: GRIMES v. CLINE.
• Court: Texas Court of Appeals

300 S.W. 235

GRIMES v. CLINE.

(No. 3442.)^*

Court of Civil Appeals of Texas. Texarkana.

November 11, 1927.

Rehearing Denied and Dissenting Opinion, December 1, 1927.

Appeal from District Court, Walker County; Carl T. Harper, Judge.

Suit by W. A. Grimes against A. L. Cline. Judgment for plaintiff, but denying a lien under a writ of attachment as to a portion of land on which levy was made, and plaintiff appeals. Affirmed.

The suit was by appellant, Grimes, to recover of appellee, Cline, the amount of promissory notes made by the latter for sums aggregating more than $3,000, and to foreclose the lien of a deed of trust on a sawmill plant conveyed by appellee to a trustee to secure payment of the notes. At the time he commenced the suit appellant caused a writ of attachment to be issued and levied upon 253.4 acres of land in Walker county; the levy being made subject to a lien securing a loan of about $2,400 made to appellee by the Federal Land Bank of Houston. Appellee did not contest the right claimed by appellant to a judgment for the amount sued for and foreclosing the lien of the trust deed on the sawmill plant and the lien of the attachment on 53.4 acres of the 253.4 acres levied upon by virtue of the writ, but did contest the right claimed by appellant to a foreclosure of the lien of the attachment on the remaining 200 of the 253.4 acres. With reference to this he alleged that, at the time of the levy of the writ, he had a wife and four children, and, as the head of a family, was entitled to claim the 200 acres as his and their homestead. In a supplemental petition appellant alleged that, at the time the writ was levied on the 253.4 acres, appellee, with his family, was residing upon premises in the city of Huntsville (known as the Simms Whitley place), which he (appellee) had leased from its owners, and that that place, and not the 253.4 acres, or any part of same, was then appellee's homestead.

The trial was to the court without a jury and he found as facts that the 253.4 acres was conveyed to appellee by a deed dated October 24, 1922; that the writ of attachment was levied on same December 19, 1925; that at the time the land was conveyed to appellee, and "at all times thereafter, the defendant (appellee) intended to establish his homestead residence thereon, and to consecrate 200 acres thereof for use as a homestead for himself and family; and some time prior to the filing of this suit, that is to say, in August or September, 1925, the defendant planted a garden on said tract of land, and began to make other preparations to move thereon, and, in November, 1925, the defendant employed carpenters and caused a house that was located on said tract of land to be repaired and put in suitable condition for occupancy for a home for himself and family, and in the latter part of November, or in the very early part of December, 1925, the defendant caused a brick chimney to be built on said house, and in November, 1925, began to move his household goods into said house with the avowed intention, and with the real intention, of making same his home, and would have completed his removal into said house in the month of November, 1925, except for the illness of his wife"; that, at the time appellee began to so prepare to make said tract of land his homestead in fact, he owned no other home, and "was (quoting) only the tenant from month to month of a house in the town of Huntsville, where he and his family had lived for a year or longer as such tenants"; and that, at the time the suit was commenced, appellee had no other homestead than that he claimed on the land levied upon as stated by virtue of the writ of attachment. The court concluded as matter of law that, while appellant was entitled to recover $3,766.26 of appellee, and to a foreclosure of the lien asserted on the sawmill plant, and on 53.4 acres of the 253.4 acres, appellee was entitled to the 200 acres remaining as his homestead. From a judgment rendered by the court in accordance with such conclusion appellant prosecuted this appeal.

Henson & Thomason, of Huntsville, for appellant.

Dean & Humphrey, of Huntsville, for appellee.

WILLSON, C. J. (after stating the facts as above).

It is settled law in this state:

(1) That premises occupied by a family may be exempt to them as a homestead, whether such occupancy be by the family as owners of the fee or a less estate, or as lessees or renters for a fixed term or at the will of the owner. Wheatley v. Griffin, 60 Tex. 209; Williams v. Withered, 37 Tex. 130; Cullers v. James, 66 Tex. 494, 1 S. W. 314; Phillips v. Warner (Tex. App.) 16 S. W. 423; Anheuser-Busch Brewing Ass'n v. Smith (Tex. Civ. App.) 26 S. W. 94; Bank v. Cruger, 31 Tex. Civ. App. 17, 71 S. W. 784; Birdwell v. Burleson, 31 Tex. Civ. App. 31, 72 S. W. 446; Ellis v. Bingham (Tex. Civ. App.) 150 S. W. 602; First Nat. Bank v. Dismukes (Tex. Civ. App.) 241 S. W. 199; Cry v. I. W. Bass Hardware Co. (Tex. Civ. App.) 273 S. W. 347; Collett v. Brokaw (Tex. Civ. App.) 296 S. W. 333.

(2) That premises which have become homestead continue such as long as the family occupying them own same; or, if they are not the owners thereof, so long as they have a right to occupy same; or until they have moved from and abandoned the premises as a home. Archibald v. Jacobs, 69 Tex. 248, 6 S. W. 177; Johnston v. Martin, 81 Tex. 18, 16 S. W. 550; O'Brien v. Woeltz, 94 Tex. 148, 58 S. W. 943, 59 S. W. 535, 86 Am. St. Rep. 829; Clem Lumber Co. v. Elliott Lumber Co. (Tex. Com. App.) 254 S. W. 935; Teller v. Fitch (Tex. Civ. App.) 281 S. W. 893.

(3) That, once acquired, a homestead can be abandoned in no other way than by moving from the premises with the intent to abandon same as a home. Powers v. Palmer, 36 Tex. Civ. App. 212, 81 S. W. 817; Pierce v. Langston (Tex. Civ. App.) 193 S. W. 745; Sharp v. Johnston (Tex. Sup.) 19 S. W. 259; Bayless v. Guthrie (Tex. Com. App.) 235 S. W. 843; Staten v. Harris (Tex. Civ. App.) 239 S. W. 334; Clem Lumber Co. v. Elliott Lumber Co. (Tex. Com. App.) 254 S. W. 935.

(4) That a family cannot have more than one residence homestead at one and the same time. Johnston v. Martin, 81 Tex. 18, 16 S. W. 550; Pierce v. Langston (Tex. Civ. App.) 193 S. W. 745.

Such being the law, we think the judgment was wrong, so far as it denied appellant a foreclosure of the attachment lien on 200 of the 253.4 acres levied upon, if the premises in Huntsville, known as the Simms Whitley place, became appellee's homestead, for the evidence was undisputed that appellee and his family, as tenants from month to month, had occupied the Whitley place for more than a year before, and were so occupying same at the time; the writ of attachment was levied on the 253.4-acre tract.

As we view the record, the judgment is sustainable, if at all, only on the theory that the trial court had a right to say that the Whitley place did not become appellee's homestead, unless he intended it should, and that it appeared from the evidence he did not so intend.

That the trial court had a right to say the Whitley place did not become homestead, unless appellee intended it should, we think is clear. Cameron v. Gebhard, 85 Tex. 610, 22 S. W. 1033, 34 Am. St. Rep. 832. In the case cited Judge Brown said:

"Intention alone cannot give a homestead right; but it is at the same time equally true that all other things combined cannot give it without the intention to dedicate it to the uses of a home."

That the evidence warranted the finding that appellee never intended the Whitley place to be his homestead we think is also clear, unless the occupancy and use thereof by him and his family should be held to have conclusively established his intent to be to the contrary. Did such occupancy and use have that effect? We think not. We know of no law declaring occupancy and use of premises as a home by a family to be conclusive evidence of an intent on the part of the head of the family to make such premises his homestead. No reason occurs to us why one who has purchased land, intending it to be his homestead, should be denied a right to claim it as such merely because he and his family occupied and used rented premises as a home until they could improve and move to the purchased land. To so hold, it seems to us, would often operate to defeat the purpose of the constitutional exemption, for a family living on rented premises could never purchase and improve land and hold it as their homestead against the claims of creditors.

The judgment is affirmed.

* Writ of error dismissed for want of jurisdiction February 22, 1928.

HODGES, J. (dissenting).

In his opinion the CHIEF JUSTICE has stated most of the material facts necessary to be considered in disposing of the principal questions presented in this appeal. He has also concisely stated four appropriate propositions of law, which are amply supported by the cases referred to. If those legal propositions are applied in this case, it would logically follow, I think, that the judgment of the trial court should be reversed. Its affirmance is based upon the conclusion that "the court had a right to conclude that the Whitley place did not become appellee's homestead unless he intended it to, and it appeared from the evidence that he did not so intend." The Whitley place was the leased residence and lot situated in the town of Huntsville occupied by the appellee and his family at the time the writ of attachment was levied on the land. It had been so occupied for more than a year before he moved and established his residence upon that land. The evidence shows that, at the time he leased, and began to occupy, the Whitley place, he owned no other homestead. The land in controversy had not then been in any manner dedicated as a homestead. The proof shows that it was rented to other parties until a few days before it was occupied by the appellee and his family as their home.

The controlling question in this case is, Was the Whitley place in law and...