McMillan v. Warner
| Decision Date | 01 January 1873 |
| Citation | 38 Tex. 410 |
| Parties | N. MCMILLAN AND HER HUSBAND v. M. E. WARNER ET AL. |
| Court | Texas Supreme Court |
1. Where there is an abandonment of the homestead, with a fixed intention not to return, the property may be subjected to the demand of creditors; and it is error to instruct the jury that proof of acquisition of a new homestead is alone conclusive evidence of the abandonment of the old.
2. The question of abandonment is almost exclusively a question of intent, and that intent must be clearly established by the best accessible evidence, before a jury will be authorized in finding a relinquishment of any rights under the homestead laws; that a party has been absent for an indefinite period, is not sufficient to establish the fact of abandonment, unless accompanied with proof of intent not to return.
3. The declarations of a party before, at the time of, and after leaving his home, may be given in evidence to establish the intent; but the sworn statement of the party himself, taken in a court of justice, if credible, must settle the question, for he alone has full knowledge of that intent.
4. The act of May 19, 1871, repeals the common law rule heretofore in force in this state, as to the disqualification of witnesses on account of interest, and, with one exception, removed all legal objections to their admissibility on account of interest in the issue tried.
APPEAL from Walker. Tried below before the Hon. J. R. Burnett.
The appellee, Mrs. Warner (then Shannon), with her then husband, D. W. Shannon, occupied the house and lot in controversy, as their homestead, in January, 1859, at which time Shannon abandoned his wife, and left for parts unknown. She continued to reside at the house until the spring of 1861, when she removed to Houston, Texas, where she pursued the occupation of a milliner, having rented the house to a tenant, and employed an agent to collect the rents that should become due thereon.
The appellant, James McMillan, obtained a judgment against D. W. Shannon, on the twenty-seventh of July, 1861, for $65.89, and the house and lot were sold under execution, to satisfy this judgment, on the third of September, 1861, for the amount of the judgment and costs, to Nancy McMillan, appellant and wife of the plaintiff in execution. F. D. Thornton, the agent of Mrs. Warner, attended the sale, and claimed the premises sold as the homestead of his principal.
On the thirtieth of September, 1861, McMillan and wife brought an action of trespass to try title against Mrs. Warner's tenant, claiming title under the sheriff's sale, which action she defended, claiming the house and lot as her homestead, and judgment was rendered in her favor on the twenty-ninth of October, 1862.
The appellees intermarried in January, 1870. On the seventeenth of March, 1871, McMillan and wife brought their second action of trespass to try title, to which appellees objected, on the ground that the second suit was not brought within one year after the conclusion of the first action, which objection, being sustained by the district court, was considered by this court at its last term, in the case of McMillan v. Warner, which was reversed and remanded.
On August 1, 1872, verdict and judgment were again rendered in favor of Mrs. Warner, from which judgment McMillan and wife prosecute their appeal to this court.
L. B. Hightower, for appellants.
Randolph & McKinney, for appellees.
Section 1 of an act of the legislature, approved May 19, 1871, provides “that in the courts of this state there shall be no exclusion of any witness on account of color; nor in civil actions because he is a party to, or interested in, the issue tried.” This statute, by implication, repeals the common law rule heretofore in force in this state in regard to the disqualifications of witnesses on account of interest, and in civil actions, excepting in one instance, has entirely removed all legal objections to the admissibility of evidence on account of any pecuniary interest of the witness testifying, or because he is a party in or to the issue tried, thus admitting to the witness stand a large class of persons heretofore shut out, and leaving them to stand exclusively upon their credibility, and their statements to be weighed and determined by the amount of conviction they may produce. The statute is very emphatic, and when it says “there shall be no exclusion of any witness,” it certainly comprehends not only the person, but also the manner of testifying, whether it be orally or by deposition, and declares, in effect, that parties to a suit and parties having a pecuniary interest in the same shall hereafter stand on the same footing as all other and disinterested...
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Kimball v. Salisbury
...exemptionist no right. Abandonment is a question of intention. And the claimant's uncontradictory statement of intention is conclusive. McMillan v. Warner, 38 Texas Thompson on Homestead and Exemptions, sec. 272; Robinson v. Swearington, 17 S.W. 356; Karding v. Joachinsthal, 89 Mich. 78; Be......
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Ousler v. Robinson
...15 Ark. 295; 29 Ark. 623; 142. U.S. 236. The homestead can be abandoned. 93 Ala. 106; 146 Ill. 646; 106 Ill. 6; 26 F. 413; 141 Mass. 187; 38 Tex. 410; 75 Mo. 559; 60 Ark. 262; 60 55; 56 Ark. 601; 55 Ark. 85. The act of the court was a confirmation of the sale. 33 Ark. 298; 103 Mo. 661; 63 T......
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Ocean Shore R. Co. v. Doelger
...of intent not to abandon is the best evidence upon that issue fails to recognize the effect of its own citation of McMillan v. Warner, 1873, 38 Tex. 410, 411; the court there considered a party's statement as decisive 'if credible.' (Emphasis added; at page 415.) Moreover, whether appellant......