Haynes v. Vermillion

• Decision Date: 14 September 1951
• Docket Number: No. 15274,15274
• Citation: 242 S.W.2d 444
• Parties: HAYNES et al. v. VERMILLION.
• Court: Texas Court of Appeals

Page 444

242 S.W.2d 444

HAYNES et al. v. VERMILLION.

No. 15274.

Court of Civil Appeals of Texas, Fort Worth.

Sept. 14, 1951.

Rehearing Denied Oct. 12, 1951.

Geo. K. Holland, Dallas, for appellants

Spafford & Spafford, Franklin E. Spafford and Cedric G. Hamlin, Dallas, for appellee.

RENFRO, Justice.

This is a suit for partition and accounting.

In 1920, H. M. Vermillion and wife, Hattie Haynes Vermillion, purchased a lot in Dallas, Texas; they paid $1,500 cash and executed a vendor's lien note for $3,000. In December, 1924, they executed a renewal note for a balance of $2,000 due on the purchase money. On February 6, 1929, H. M. Vermillion executed a general warranty deed conveying the land in question to his wife, Hattie Haynes Vermillion, as her separate estate, reciting a consideration of $10 and love and affection. The deed was silent concerning the outstanding indebtedness against the property. Later in the same year, and again in 1935, Hattie Vermillion and H. M. Vermillion renewed the outstanding $2,000 note.

In January, 1937, Hattie Haynes Vermillion died. Since she died intestate and without issue, one-half interest in the property in question passed to H. M. Vermillion and the other one-half to the appellants.

In June, 1939, H. M. Vermillion married Hester A. Vermillion. In December, 1940, H. M. Vermillion and Hester A. Vermillion renewed the $2,000 note for five years. In December, 1943, H. M. Vermillion paid $1,000 on the note.

On May 7, 1944, H. M. Vermillion died and under his will left all of his estate to Hester A. Vermillion. In December, 1944, Hester A. Vermillion paid the remaining $1,000 balance due on the vendor's lien note heretofore referred to and $60 accrued interest.

On February 9, 1945, plaintifffs, being the brothers and sisters and the children of deceased brothers and sisters of Hattie Haynes Vermillion, brought this suit for a half interest in the lot as collateral kin and heirs of Hattie Haynes Vermillion and for reasonable rental value from the date of the death of Hattie Haynes Vermillion.

The case was tried in a district court of Dallas County, Texas. Based upon jury findings and additional findings by the court, judgment was entered decreeing that a one-half interest in the lot belonged to appellee (defendant below) and one-half to appellants (plaintiffs below), and ordered same to be sold. Neither side has appealed from that part of the trial court's judgment.

The court allowed Hester A. Vermillion, appellee, a charge against the appellants' interest in the sum of $700.56, being one-half of the following sums: $2,000 enhanced value by reason of the erection of a brick building on the lot; $1,431.27 expended by appellee for taxes, insurance and reasonable and necessary repairs; and $1,060 expended by appellee in discharging the vendor's lien note heretofore referred to, less $3,090 agreed rental value.

By appropriate points appellants attack the allowance of $2,000 for enhanced value, certain items included in the $1,431.27 allowed for insurance and reasonable and necessary repairs and maintenance, and $1,060 allowed for discharging the vendor's lien note, and assign as error the refusal of the court to allow the appellants' claim for rent for the full period of time from the date of the death of Hattie Vermillion to the date of trial.

The trial court was correct in denying appellants' claim for rental from the date of the death of Hattie Haynes Vermillion to the date of the death of H. M. Vermillion. In an opinion written in a prior appeal of this case, Vermillion v. Haynes, 147 Tex. 359, 215 S.W.2d 605, 608, the Supreme Court held: 'If petitioner can properly establish upon another trial that the property was being used by H. M. Vermillion as a business homestead when Hattie Haynes Vermillion died respondents (appellants in this appeal) are not entitled to recover rents for the period that he continued thereafter so to use it.' (Emphasis ours.) The jury found that H. M. Vermillion was using the property as a business homestead at the date of the death of Hattie Haynes Vermillion. Appellants assail the finding of the jury to that effect and the finding of the court that the property continued to be the business homestead of H. M. Vermillion to the date of his death.

To preserve a place of business which is separate and distinct from the home as a part of the homestead, the head of a family must have a calling or business to which the property is adapted and reasonably necessary and such property must be used as a place to exercise the calling or business of the head of a family. Shryock and Rowland v. Latimer, 57 Tex. 674; Mays v. Mays, Tex.Civ.App., 43 S.W.2d 148. The title to the lot composing a homestead may be the separate property of either the husband or wife. Crowder v. Union National Bank of Houston, 114 Tex. 34, 261 S.W. 375.

The pleadings and proof amply support the jury finding that the property was the business homestead of H. M. Vermillion at the time of the death of Hattie Haynes Vermillion and the evidence is undisputed, uncontradicted and in fact largely supported by the testimony of one of the appellants that after the death of Hattie Haynes Vermillion and until the date of the death of H. M. Vermillion, he continued to use the property just as he had before Hattie Haynes Vermillion's death. He operated a small sandwich stand or cafe business on the premises, that was the only place of business he had, that was where he earned his livelihood for himself and Hattie Haynes Vermillion before her death and the only business he had to support himself from her death until his death, and his sole income was from the business on the premises.

We accordingly hold that appellants were not entitled to an accounting for rent prior to H. M. Vermillion's death in May, 1944.

The court found that ...