Gunn v. Wynne

• Court: Texas Court of Appeals
• Writing for the Court: Finley
• Citation: Gunn v. Wynne, 43 S.W. 290 (Tex. App. 1897)
• Decision Date: 19 June 1897
• Parties: GUNN et al. v. WYNNE et al.<SMALL><SUP>1</SUP></SMALL>

43 S.W. 290

GUNN et al. v. WYNNE et al.¹

Court of Civil Appeals of Texas.

June 19, 1897.

Appeal from district court, Lamar county; E. D. McClellan, Judge.

Trespass to try title by W. T. Gunn and others against A. B. Wynne and others. From a judgment for certain of the defendants, plaintiffs appeal. Affirmed.

Burdett & Connor and Hale & Hale, for appellants. Park & Birmingham and E. D. Scales, for appellees.

FINLEY, J.

This is an action of trespass to try title to the several tracts of land described in plaintiffs' second supplemental petition, brought by plaintiffs against all the defendants. In said supplemental petition, plaintiffs admitted that the land described therein and in their original petition was for many years the homestead of Wynne and wife, and that they used and occupied it for many years as such; and they further alleged that said premises so occupied and used as their homestead had long since been abandoned as their homestead, and had not been used and occupied by them as a homestead for a long period of years; that said property was situated in the country, and not in a town or a city or a village; that about the year 1885 the defendant A. B. Wynne bought a house and lot in the city of Paris (within its corporate limits), and that he and his wife, about that year, together with their family, moved to town, and went into and on said premises in town, and occupied the same as their homestead continuously since then, using and claiming it as their homestead. They further alleged that Wynne and wife entirely and permanently abandoned the property in controversy as a homestead and place of residence about May 5, 1885, at which time they moved to town, and have never since resided on any of the land in controversy, or in any manner used it as their homestead since their removal to the house and lot in Paris. Plaintiffs further alleged that on December 31, 1893, O. C. and E. S. Connor, as the executors of W. B. Aikin, deceased, sued out a writ of attachment against the defendant A. B. Wynne, out of the district court of Lamar county, Tex., in cause No. 5,717, wherein O. C. Connor and E. S. Connor, executors of W. B. Aikin, deceased, were plaintiffs, and George M. Settle, W. T. Gunn, and A. B. Wynne were defendants, which said writ of attachment was levied on all the lands in controversy on December 31, 1893, at 8:45 o'clock p. m., as the property of said A. B. Wynne; and that on April 3, 1894, said plaintiffs in said cause recovered judgment against said defendants for the sum of $2,933.33, with 10 per cent. interest from said date, and all costs of suit, and foreclosing the attachment lien on said property, and that subsequently the land was duly sold according to law by virtue of an order of sale issued on said judgment, at which sale plaintiffs became the purchasers, and on July 3, 1894, the sheriff of Lamar county made a deed to said plaintiffs for said land, upon their complying with their bid at said sale. Said deed conveyed all the right, title, and interest that said A. B. Wynne had in said lands on December 31, 1893. They further alleged, showing other suits against A. B. Wynne and other parties, and levy of attachments upon the lands in controversy, judgment foreclosing attachments, and sale under said judgments and deed by sheriff to these plaintiffs. All the defendants, except A. B. Wynne and E. C. Wynne and Bryant Hester and Catherine Hester, filed a disclaimer as to all of said land. Defendants Bryant Hester and Catherine Hester made default. Defendants A. B. Wynne and E. C. Wynne answered by general demurrer and plea of not guilty, and pleaded specially that two of the tracts sued for, and fully described in their answer, were the homestead of said defendants, and had been such for more than 20 years. They also filed an admission that plaintiffs had a good cause of action as set forth in the petition, except so far as it might be defeated in whole or in part by the facts of the answer filed by them. Defendants were given the right to open and conclude in the evidence and argument. There was a trial by jury between plaintiffs and defendants A. B. Wynne and E. C. Wynne, and a verdict in favor of plaintiffs for all the land sued for, except the land described in said defendants' answer, and a verdict in favor of said defendants for said land. There was a judgment in favor of plaintiffs against all of the defendants except Wynne and wife for all of the land sued for, and against Wynne and wife for all the land except the land described in their said answer, and in their favor for said land claimed by them as homestead. From this judgment the plaintiffs have appealed.

The issues of fact which were involved upon the trial, which arose under the pleadings and evidence, and are involved in the verdict and judgment, are as follows: (1) Did the appellees ever abandon their country homestead? (2) If the country homestead was ever abandoned by appellees, did they re-enter and occupy the property in good faith, with the intention of again making it their homestead, prior to the time that the writs of attachment under which appellants claim were levied upon it? There was sufficient evidence adduced upon the trial to warrant the jury in reaching affirmative answers to each of these questions, and hence we conclude that the property involoved upon this appeal was the homestead of appellees at the time the writs under which appellants claim were levied upon the property. The general conclusion of law necessarily follows, that the property being the homestead, and as such exempt from forced sale, under the constitution and laws of this state, no title passed to appellants by reason of the sales under the writs of attachment, and therefore plaintiffs were not entitled to recover. We will notice the points raised by assignments of error:

The first, second, fourth, and sixth assignments of error, each relating to the subject of the court's action in admitting evidence tending to show that when A. B. Wynne purchased the house and lot in Paris, and removed to it with his family, he did not intend to abandon his old homestead in the country, but moved to Paris for the purpose of educating his children, and with the intention of returning to his country homestead after this object was accomplished, are grouped together and presented by appellants. Under these assignments it is urged that the purchase of the residence in the town of Paris, the leaving of the homestead in the country, and occupancy of the town residence for such a considerable time as was necessary to be consumed in the education of the children of the family, worked an abandonment of the country homestead, regardless of the intention of the appellees. We discussed this question, and decided it adversely to appellants, in the case of Baum v. Williams, 41 S. W. 840, decided by this court May 8, 1897, and not yet officially reported. The question is also discussed, to some extent, and the same views expressed in the case of Mortgage Co. v. Scripture (Tex. Civ. App.) 40 S. W. 210. See, also, Reinstein v. Daniels, 75 Tex. 640, 13 S. W. 21; Wagon Co. v. Kennedy, 75 Tex. 212, 13 S. W. 28; C. Aultman & Co. v. Allen (Tex. Civ. App.) 33 S. W. 679; Farmer v. Hale (Tex. Civ. App.) 37 S. W. 164; Graves v. Campbell, 74 Tex. 579, 12 S. W. 238; Rollins v. O'Farrel, 77 Tex. 95, 13 S. W. 1021; Cantine v. Dennis (Tex. Civ. App.) 37 S. W. 187; Locke v. Bonnell, Id. 250.

The third and fifth assignments challenge the action of the court in admitting evidence tending to show that the intention of the wife, E. C. Wynne, in removing with her husband to the house and lot in Paris, and living there, with their family, was not an abandonment of the homestead, but was for the temporary purpose of the education of their children in Paris, and a purpose to return to and reoccupy the country home as their homestead. The idea presented under these assignments is that the husband has the right to select the homestead of the family, and that the intentions of the...