Harkrider-Keith-Cooke Co. v. Smith

• Decision Date: 05 May 1926
• Docket Number: (No. 7005.)
• Citation: 284 S.W. 612
• Parties: HARKRIDER-KEITH-COOKE CO. v. SMITH.
• Court: Texas Court of Appeals

284 S.W. 612

HARKRIDER-KEITH-COOKE CO. v. SMITH.

(No. 7005.)

Court of Civil Appeals of Texas. Austin.

May 5, 1926.

Appeal from District Court, Coleman County; J. O. Woodward, Judge.

Suit by Claude W. Smith against the Harkrider-Keith-Cooke Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Dibrell & Snodgrass, of Coleman, for appellant.

W. Marcus Weatherred, of Coleman, for appellee.

McCLENDON, C. J.

Suit by Claude W. Smith, appellee, against Harkrider-Keith-Cooke Company, appellant, to restrain sale of S. E. 1/4 of block 19, Claws addition to town of Coleman, under execution upon a judgment against Carl Cheaney, and to remove cloud from title. Trial to the court. Judgment for plaintiff for relief sought. Defendant appeals.

The following facts are undisputed: On May 13, 1921, appellant recovered in the justice court of precinct No. 1, Coleman county, a judgment against Cheaney and another for $42 besides interest and costs. An abstract of this judgment was, on January 7, 1922, recorded and indexed in Coleman county, so as to fix a lien on real estate in the county then or thereafter owned by Cheaney. This judgment was kept alive by executions as the law requires.

The property in suit was conveyed to Cheaney by a Mrs. Nowlin by deed of May 8, 1923, for the recited cash consideration of $250. On June 7, 1923, Cheaney gave a deed of trust on the property in favor of Temple Trust Company "to secure the payment of the note therein described, same being a loan made on said date by Temple Trust Company to Carl Cheaney for the purpose of improving the property in question." On December 26, 1923, Cheaney and wife conveyed the property to J. W. Waites, and on December 30, 1923, Waites conveyed it to appellee, Smith. Each of these instruments was recorded on the day of its execution. On April 29, 1925, appellant caused an execution issued under his judgment against Cheaney to be levied upon the property, and the property was advertised to be sold under this levy on the first Tuesday in June, 1925. Appellee brought this suit to enjoin the sale and remove cloud from his title by virtue of the apparent abstract of judgment lien, alleging that the property was the homestead of Cheaney and wife from the time Cheaney acquired it until he conveyed it to Waites.

Appellant's brief contains nine assignments of error. The first three question the sufficiency of the evidence to support the claim of homestead. The next three relate to objections preserved in appellant's bills of exceptions numbered 1, 2, and 3 to certain testimony of Waites. The seventh is not briefed, and the eighth and ninth complain of testimony objection to which is alleged to have been preserved in appellant's bills of exceptions numbered 5 and 6. There are no bills of these numbers. There are three unnumbered bills in the record, but there is nothing to indicate to what bills the assignments refer. For these reasons only the first six assignments can be considered. We will first consider the assignments questioning the sufficiency of the evidence to support the homestead claim.

At the time the property was purchased by Cheaney it was vacant and unimproved, and appellant's contentions, as set forth in its first two propositions, are that the burden of proof was on appellee to show the homestead character of the property at that time in order to defeat the judgment lien, and that this burden was not met since the evidence showed only a subsequent improvement and occupancy of the property by Cheaney. The evidence upon the homestead issue is confined to the testimony of Waites alone. Cheaney was not called as a witness, and the record discloses no reason why he was not called.

We quote the following from Waites' testimony underscoring the portions to which objections were preserved in bill of exceptions 1, 2, and 3:

"I was acquainted with that property on May 8, 1923, the date of the deed from Mrs. Nowlin to Carl Cheaney. There were no improvements whatever, of any kind, on that property at that time — it was just a vacant town lot. I paid the cash consideration for that deed; I paid for all papers; I paid for all of the transaction of the papers and also for the lot, and for the $250 consideration in the deed. I paid that $250 cash consideration to Mrs. Nowlin. It was Carl Cheaney's intention, in buying that property to buy it for a home. He didn't own any other property in Coleman at that time — if he did anywheres I don't know it. He was living in the house with me here in Coleman. At that time Mr. Cheaney had a wife and one baby.

"As to what I did, if anything, immediately after that deed was executed to Carl Cheaney: Well, I had a lot of material left from the Allen and Scarbrough job, and moved that on the job there and put Carl to work. I moved a house over on that lot just after Carl Cheaney got that deed. I built a five-room building there, and as soon as I got it completed Carl Cheaney and his wife and baby moved into it. Carl Cheaney continued to reside on that property and used it for a home up until the time he sold it back to me, which was on December 26, 1923, as shown by the deed. He was still living in it when I got the deed. He had no other home that I knew anything about, and was using that as his home. After I got that house completed — somewhere about that time, I don't know the date — Carl Cheaney executed a deed of trust to the Temple Trust Company on that property. The deed of trust shows June 7, 1923; I guess that is about right, along there somewhere. The Temple Trust Company didn't advance any money until I actually got the property completed, and after I got it completed the Temple Trust Company took up the deed of trust — in this deed of trust. That was on June 27, 1923, not quite a month after the deed from Mrs. Nowlin. Carl Cheaney was living in the house at the time he sold it to me; he was living in the house at the time the deed was delivered to me.

"I bought the land from Mrs. Nowlin. Carl Cheaney was living in the house with me then. He knew that I was buying it for them for a home. Mr. Cheaney and me talked the matter over. He just made the remark, him and his wife both, that they would love to have a home, and I bought it for that purpose for them. I told them if they would go on and work for me and save and do their part I would help them to build a home. So this money I...