Massillon Engine & Thresher Co. v. Barrow

• Decision Date: 01 June 1921
• Docket Number: (No. 210-3305.)
• Citation: 231 S.W. 368
• Court: Texas Supreme Court
• Parties: MASSILLON ENGINE & THRESHER CO. v. BARROW et al.

231 S.W. 368

MASSILLON ENGINE & THRESHER CO. v. BARROW et al.

(No. 210-3305.)

Commission of Appeals of Texas, Section A.

June 1, 1921.

Error to Court of Civil Appeals of Ninth Supreme Judicial District.

Suit by Clarence Barrow and others against the Massillon Engine & Thresher Company. Judgment for plaintiffs was affirmed by the Court of Civil Appeals (203 S. W. 933), and defendant brings error. Modified and affirmed.

H. E. Marshall, of Houston, and A. W. Marshall, of Anahuac, for plaintiff in error.

Stevens & Stevens, of Houston, for defendants in error.

SPENCER, J.

Clarence Barrow and wife, Rosa, Lee Barrow and wife, Josephine, and J. M. Barrow and wife, Jane, instituted this suit in the district court of Chambers county, Tex., naming the Massillon Engine & Thresher Company, a corporation, and F. R. Lafour, sheriff of Chambers county, Tex., as defendants, seeking to restrain the sale of the lands described in the petition—the corporation having procured the issuance of an order of sale upon a judgment which the corporation had secured in the district court of Chambers county, Tex., against Clarence, Lee and J. M. Barrow, and this order of sale having been placed in the hands of the sheriff. Lee and J. M. Barrow having died during the pendency of the suit, the proper heirs were made parties thereto.

The basis of the judgment against the three Barrows was this: On October 7, A. D. 1903, in order to better secure the corporation in the payment of an indebtedness which the Barrow brothers owed it, the three brothers, joined by their wives, executed and delivered a mortgage upon their undivided interest in the two tracts of land which are the subject of this controversy—one consisting of 540 acres; the other of 160 acres. Upon the indebtedness becoming due, and upon default in the payment thereof, that suit was instituted, but the wives were not made parties thereto. Judgment for the amount of the indebtedness, with foreclosure of the mortgage lien, was rendered; the judgment directing an order of sale upon the lands upon which such lien was foreclosed.

The present suit for injunction is predicated upon the alleged ground that the land in question constituted, at the time of the execution of the mortgage, the homestead of the plaintiffs, and that the mortgage was not executed for the purpose of paying or securing the payment of any lien for purchase money, taxes, or improvement upon such homestead.

The court issued a temporary restraining order, and, upon final hearing, perpetually enjoined the foreclosure, by order of sale, of the judgment lien against the land claimed as homesteads by the plaintiffs, and in this final order decreed that, in so far as the judgment in the foreclosure suit purported to fix a lien against the land described in the judgment, it be canceled and held for naught. Upon appeal, the Court of Civil Appeals affirmed the judgment. 203 S. W. 933.

J. S. Barrow died in 1892, leaving surviving him seven children—Clarence, Lee, and J. M. being of this number—and his wife, Eliza Jane Barrow, the mother of these children. It is admitted that the 540-acre tract, known as the Banda tract, was the separate property of J. S. Barrow, and the 160-acre tract, known as the Barrow tract, the community property of the marriage.

Clarence and Lee Barrow and the heirs of J. M. Barrow, deceased, each claimed a homestead right to an undivided interest of 200 acres of the entire tract of land, although each was entitled to but an undivided interest of approximately 67 acres. The land was divided subsequent to the giving of the mortgage. Clarence Barrow lived in the house with his mother upon the 540-acre tract of land. His claim to a homestead interest is based upon his own evidence, as follows:

"I married at home, but do not remember how long I had been married at the time I signed this mortgage. I was living on the old place. We took an undivided interest in the land, and it had never been divided. I never had built a home or house on any part of the 700 acres before this mortgage was given, but I lived on the homestead. My mother was living in the old Barrow homestead, and had been living there since the death of my father. I was living there with my mother. She remained there and occupied it up until the time of her death. She used that as her homestead. I did not rent land from my mother, just worked with her. I think the Banley (Banda) is all prairie, and the Barrow is all prairie except a little bit in the woods. Nobody occupied that, outside of the little field John had, and what Lee had, and what my mother had, there in the old home place, all that land was out. We had about 40 acres under fence, and the rest of it was wild range land, and there was no attempt to utilize it. Outside of what we were farming and our pasture, the rest of it was outside."

He also testified that, before and after the execution of the mortgage, he and his brothers got their firewood and posts from the 16 acres of timbered land on the bayou. This tract was on the Banda survey, and was subsequently set aside in partition to Clarence Barrow. It is quite clear from the undisputed evidence that the alleged claim of Clarence Barrow to a homestead right is coextensive with and confined to the identical land used by his mother as her independent homestead. No act of his indicated an intention to devote any of the land, outside of that held and used by the mother, to homestead purposes. No contention is made that she abandoned her homestead, or waived her right thereto; but, on the other hand, it is admitted that she continued to exercise the right of homestead possessions given her under the Constitution until her death. This right was, we...