Johnson v. Martin

• Decision Date: 08 May 1891
• Citation: 16 S.W. 550
• Court: Texas Supreme Court
• Parties: JOHNSTON <I>et al.</I> v. MARTIN.

16 S.W. 550

JOHNSTON et al. v. MARTIN.

Supreme Court of Texas.

May 8, 1891.

Appeal from district court, Brown county; J. W. TIMMINS, Judge.

Harrell & Wilkinson, for appellants. Goodwin & Cleveland, for appellee.

HENRY, J.

This suit was brought by the appellee to recover the amount of a promissory note, and to foreclose a deed of trust made by appellants to secure it. The appellants pleaded that the land conveyed by the deed of trust was their homestead. The cause was tried by the court without a jury, and the following findings of fact were filed by the judge: "At the time of the execution of said note and deed of trust defendant did not occupy the land in controversy, but at said time he and his wife occupied a house in the town of Brownwood, which said house belonged to defendant, and was used by him as a place of business and as a residence; and, further, that said house was situated on land which was leased by defendant for a term of five years, of which two and one-half years had expired. At the time of the execution of said note defendant had inclosed the land in controversy, and had built thereon a fish-pond or water-tank, and had put fish therein. He had also cleared away the spot of land upon which to build a house, and had placed thereon certain stones for a foundation thereof. He had also expressed an intention of making said land a home for himself and family. No other steps were taken by the defendant towards making said land his home until more than one year after the execution of said note. He then planted some trees on said land, and about five months thereafter he built a house, which he has since used as a home for himself and family." The court concluded that at the time of the execution of the deed of trust the land was not entitled to exemption as a homestead, and gave judgment accordingly. The defendant proposed to testify that at the date of the execution of the deed of trust he owned no homestead except the land in controversy. The evidence was objected to, and excluded. The witness had been permitted to testify to the facts. The excluded testimony was merely his own conclusion, which it would have been error to admit. The defendant also proposed to testify that the land was purchased by him "for the purpose alone of a home for himself and his family," and that, prior to the execution of the deed of trust, he and his wife went upon the land, "and mutually designated and set apart said tract of land as their homestead by...