In re Presnall

• Decision Date: 16 February 1909
• Docket Number: 404.
• Parties: In re PRESNALL.
• Court: U.S. District Court — Western District of Texas

167 F. 406

In re PRESNALL.

No. 404.

United States District Court, W.D. Texas, San Antonio Division.

February 16, 1909

Homestead 168

Graham Dowdell, trustee of the bankrupt's estate, has filed a petition to review the order of the referee, requiring him to set apart to the bankrupt the following described property as his homestead: Lot No. 4, in city block No. 179, on the west side of Garden street, fronting 30 varas on said street, and running back between parallel lines to the San Antonio river for depth, known as 'Presnall Place,' No. 215 Garden street, situated in the city of San Antonio, Bexar county Tex. The record contains the findings of fact and conclusions of law of the referee, as follows:

'Findings of Fact.

'I find that in 1885 the bankrupt bought the lot in controversy paying therefor less than $5,000, and moved into the property with his family, consisting of himself, wife, daughter, and son, and continued to live upon the property, using same exclusively as a homestead, until the year 1895, when he leased the property to Mrs. Steffian for a year, and with his family moved to Dimmitt county, where they lived upon property which the bankrupt held under lease for 10 or 11 months, when the family returned to San Antonio and boarded in a different part of the city for 2 or 3 months, when they returned to resume their occupancy of this property, and that during the year 1896 the bankrupt and his wife rented this property to their daughter, Mrs. Gertrude Wooley, for the purpose of conducting a boarding house therein; the bankrupt however, reserving the right to use a room, with the use of the parlor, dining room, stables, and other portions of the property in common with other boarders renting rooms from Mrs. Wooley.

'I find that Mrs. Wooley continued to rent said property from the bankrupt and his wife from the year 1896 to 1902 under a verbal lease, and that in 1902 a written lease was given by the bankrupt to Mrs. Wooley, in order that she might sublease the property to Messrs. Tenny & Lewis, who occupied the property under sublease for a year or more, using same for the purpose of conducting a boarding house, and at the expiration of their occupancy Tenny & Lewis surrendered possession of the property to Mrs. Gertrude Wooley, who then continued to occupy same and to conduct a boarding house therein up to September 30, 1907.

'I find that during the period of time from 1896 to September 30, 1907, the bankrupt and his wife continued to live in said house as boarders of the lessees, and with only the same privileges accorded them as were given to the boarders, with the exception that the bankrupt and his wife were allowed to bring their guests into the house and have them lodged and fed without cost to the bankrupt or his wife.

'I find that during said period of time the entire management and control of the property were vested in the lessees, and that neither the bankrupt nor his wife owned any of the furniture with which said house was furnished.

'I find that on September 30, 1907, the bankrupt and his wife executed a written lease to Mrs. Wooley, to run for a period of four years from that date, in order to enable her to sublease the property to Mr. M. B. Hutchins, and that on the same date the property was leased to said Hutchins for the purpose of conducting a boarding house or hotel for a period of four years, and that the bankrupt and his wife and his daughter, Mrs. Wooley, thereupon left said property and moved into the house owned by Mrs. Wooley, where they are now residing, and that during the period of said Hutchins' lease he has the exclusive management and control of said property, and neither the bankrupt nor any member of his family has any right to use the same for homestead purposes. I find that, when the bankrupt and his wife left the home they did so with the expressed intention of returning thereto at the expiration of the Hutchins lease, and I find that they left the property because it had become unsuitable as a home because of its use as a boarding house and the condition of Mrs. Presnall's health, but with the intention to return to same for the purpose of holding the property as a homestead against creditors.

'I find that a two-story addition of 7 rooms was made to said house in 1897 for the purpose of accommodating more boarders, that in 1898 a second addition of 4 rooms was made to said house for the same purpose, and that in 1899 a third addition of 5 rooms for the same purpose was made to the house, and that in 1904 a fourth addition, consisting of a one and two story frame addition, was added to said house, and that all of said additions were made for the purpose of accommodating more boarders, and that at the present time the size of said house has been increased from 8 rooms to something like 42 rooms, and that said property is better adapted for use as a hotel than as a homestead for a family of two or three; but I find that, owing to the fact that said additions have been made to the original structure and are not separate therefrom, the original property is incapable of segregation from the structures erected for the purpose of accommodating more boarders.

'Conclusions of Law.

'(1) By reason of the facts found, I am of the opinion that the property in controversy is, under the laws of this state, the homestead of Jesse Harrison Presnall and Ada H. Presnall, and that they have never abandoned same as such.

'(2) I find that they intend to return to said property and use it as a home at the expiration of the present lease to Hutchins.

'(3) I find that, inasmuch as the entire lot upon which this house is located constitutes the homestead of Presnall and wife, and the original building cannot be segregated from the additions thereto, the bankrupt is entitled to have set apart to him as exempt the whole of the property in controversy.

'Guy S. McFarland.'

It is proper to add that the verbal lease, executed by the bankrupt and his wife to their daughter, Mrs. Wooley, extending from 1896 to 1902, mentioned in the findings of the referee, was from year to year. The record also discloses that, up to the time of the written lease executed to Hutchins, the bankrupt used the barn immediately in rear of the main building, and that Mrs. Presnall cultivated flowers in the yard. Further, it is shown that the property in controversy is the only home owned or claimed by the bankrupt since it was acquired in 1885. The order of the referee, setting apart the property to the bankrupt as his homestead, was made June 8, 1908, and about the 1st of November following the leases, executed between the Presnalls and Mrs. Wooley and between Mrs. Wooley and M. B. Hutchins, were canceled by mutual agreement of the parties, and the Presnalls resumed possession of the 215 Garden street property. They are now occupying and using the property as their home and are renting rooms to persons desiring board.

George R. Gillette, Wm. Aubrey, and Graham Dowdell, for trustee.

Earl D. Scott and John Sehorn, for bankrupt.

MAXEY, District Judge (after stating the facts as above).

The question to be determined is whether the property in controversy should be set apart to the bankrupt as his homestead. By article 16, Sec. 51, of the Constitution of this state, it is provided:

'The homestead in a city, town or village, shall consist of lot or lots, not to exceed in value five thousand dollars at the time of their designation as the homestead, without reference to the value of any improvements thereon; provided, that the same shall be used for the purposes of a home, or as a place to exercise the calling or business of the head of a family; provided, also, that any temporary renting of the homestead shall not change the character of the same, when no other home has been acquired.'

The jealousy with which homestead rights are protected by the laws of Texas is aptly illustrated by the following language of Mr. Chief Justice Hemphill in Shepherd v. Cassiday, 20 Tex. 30, 70 Am.Dec. 372:

'The homestead is not to be regarded as a species of prison

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