Hines v. Nelson

• Decision Date: 20 December 1893
• Citation: 24 S.W. 541
• Parties: HINES v. NELSON et al.
• Court: Texas Court of Appeals

24 S.W. 541

HINES v. NELSON et al.

Court of Civil Appeals of Texas.

December 20, 1893.

Appeal from district court, Bexar county; W. W. King, Judge.

Trespass to try title by Annie Nelson and others against H. C. Hines. Judgment was entered in favor of plaintiffs, and defendant appeals. Affirmed.

Upson & Bergstrom, for appellant. McLeary & Fleming, for appellees.

FLY, J.

Appellees filed suit in trespass to try title against appellant for lots 5 and 6, in block 29, on Avenue C, city of San Antonio, the claim being set up that it was the homestead of appellees. Appellant answered, denying that the lots were the homestead of appellees, and alleging that he had bought the same from the trustee, who sold the same by virtue of deeds of trust executed by appellees. The case was tried before a jury, and a verdict for the appellees returned.

We draw the following conclusions of facts: (1) On December 16, 1881, the lots in controversy above described were bought by appellee Peter Nelson, who was at that time, and has been since, the husband of Annie Nelson, appellee, and the deed to the same was, on same day of execution, duly recorded. (2) That on the 16th day of December, 1881, being the same day on which said lots 5 and 6, in block 29, were purchased, appellees, being man and wife, moved on the same, and made it their home, and were residing on it during all time from date of purchase up to 1887, with the exception of a few months spent on a ranch on the Medina river, 14 miles from San Antonio, in 1884; that, while on said ranch, the homestead in San Antonio was rented, but a portion of the household furniture was left in said homestead. (3) That in January, 1885, appellees moved back into their home on said lots 5 and 6, and were living on the same when the deeds of trust hereinafter mentioned were executed. (4) That the renting of the home was only done temporarily, and with no intention of abandoning the city homestead for the country one on the Medina river. (5) That while appellees were living on the lots in controversy, to wit, on March 19, 1885, Peter Nelson executed a deed of trust to Hugo & Schmeltzer on the lots in controversy, to secure a promissory note made by said Peter Nelson for $1,030; that, by virtue of said deed of trust, L. C. Grothaus, trustee, sold said lots on May 1, 1889, to appellant, said sale being properly conducted, and the deed duly acknowledged and recorded. (6) That on the 26th day of May, 1885, Peter and Annie Nelson duly acknowledged and delivered to H. C. Hines a deed of trust on the lots in controversy to secure a certain note for $800, George R. Hines being trustee; and in said deed of trust was the following declaration: "And we, for ourselves, our heirs and legal representatives, covenant with the said George R. Hines that said lots are free from all mortgages, etc.; also, that the said lots hereinbefore mentioned are not our homestead, and constitute no part of our homestead; and we hereby solemnly declare that our homestead consists of a tract of land fourteen miles west of San Antonio, on the east side of the Medina river, on the line of the G., H. & S. A. R. R., containing fourteen hundred acres, on which our dwelling houses are situated." (7) That on May 23, 1889, said George R. Hines, trustee, conveyed to appellant the lots in controversy, there being default in the payment of the $800 note, and the same was duly acknowledged and recorded. (8) That the ranch on the Medina was not paid for when the deed of trust was executed, and never was paid for, and, after the execution of the trust deeds, was sold for the purchase money.

There is but one assignment of error, as follows: "The court erred in refusing to give the following charge No. 1, requested by the defendant, to wit: `You are further charged that if you believe from the evidence that plaintiffs owned the property on the Medina, and designated in the deed of trust to the defendant, and that the same was improved with dwellings, and had been used and occupied by plaintiffs as a home, and that they also owned the property in controversy, and were using and occupying the same as a home, then, if you find from the evidence that plaintiffs borrowed money from the defendant and Hugo & Schmeltzer, and represented and designated that it was their intention to claim, use, and occupy the property on the Medina as their home, and defendant, relying upon such designations and representations, loaned plaintiffs money on property in controversy, these plaintiffs are estopped from claiming the property in controversy as a home, and in that event you will find for defendant,'—because it appears from the evidence that the plaintiffs, at the time of making said loan, did own the property in controversy, as well as a tract of more than two hundred acres of land on the Medina, both of which were improved with...