Medlenka v. Downing

• Court: Texas Supreme Court
• Writing for the Court: STAYTON
• Citation: Medlenka v. Downing, 59 Tex. 32 (Tex. 1883)
• Decision Date: 23 February 1883
• Docket Number: Case No. 1331.
• Parties: A. & C. MEDLENKA v. R. DOWNING ET AL.

59 Tex. 32

A. & C. MEDLENKA

v.R. DOWNING ET AL.

Case No. 1331.

Supreme Court of Texas.

Feb. 23, 1883.

ERROR from Harris. Tried below before the Hon. James Masterson.

Suit by appellees against the appellants for part of block No. 109, on the south side of Buffalo bayou, in the city of Houston, measuring one hundred feet on Jackson street and two hundred and fifty feet on Magnolia street, excepting a piece fifty by one hundred feet out of the same. The right to recover was alleged to be, “That on the 30th day of August, 1876, Anton Medlenka and his wife, Christina Medlenka, the appellants, executed their note for $1,500, due three years after date, with twelve per cent. interest, and that to secure it they executed a deed of trust on the land described in the petition to W. W. Downing, trustee, and, in case he failed to act, then to H. A. Maydole, as alternate trustee; that when the note fell due appellants failed to pay it, and the land and premises were regularly sold, and appellees became the purchasers.”

Appellants answered that the premises were, at the date of the execution of the deed of trust, their homestead, and had been their homestead for a period of twenty-six years, viz., since 1854, and they claimed the deed of trust conveyed no right, and that plaintiff had no title to the land sued for.

The only defense urged in the court below was that at the time the deed of trust was executed, the land sued for was the homestead of appellants, and the deed of trust and the sale under it were void.

The description given in the deed of trust for the land is as follows: “All that tract or parcel of land to which the said A. Medlenka was, at the spring term of the district court of Harris county, 1868, vested with a fee simple title by a decree of said court, in block one hundred and nine (109), on the south side of Buffalo bayou, in the city of Houston, which tract or parcel of land is described by said decree as being one hundred feet on Jackson street and two hundred and fifty-nine feet on Magnolia street, containing two hundred and twenty-four thousand five hundred square feet. We only excepting out of the said tract which we now designate here as our homestead, to wit: fifty by one hundred feet, commencing at the southwest corner of said block 109; thence along the line of Jackson street one hundred feet, to the back line of said tract; thence east along the north or back line of said tract fifty feet; thence south, parallel with Jackson street, one hundred feet, to Magnolia street; thence west along Magnolia street fifty feet, to the place of beginning. This described fifty by one hundred feet being the only amount of said tract which we claim as our homestead.”

The court, among other things, found upon the facts “that plaintiff loaned Medlenka and wife $1,500, secured by trust deed upon all of the block except fifty by one hundred feet, upon which stood all the houses, outhouses and conveniences pertaining to the homestead of Medlenka and wife; that the money so borrowed was invested in erecting tenement houses for rent, which have ever since been rented and in no sense used for homestead purposes, and that the present homestead of Medlenka and wife is amply sufficient.”

The court further found on the facts:

… “Upon the trial it sufficiently appeared from the evidence, that at some period anterior to borrowing the money by defendants, that the block 109 was inclosed, and that a part of it outside of the fence which separated the yard from the balance of the block, was used as a garden for vegetables for family use and for market. The preponderance of proof on this point shows that the kitchen garden was on that part of the block fronting on Magnolia street, between the point indicated in the trust deed as being fifty feet from Jackson street, and the point indicated by a curved line, upon which the evidence shows the fence separating the tenant houses was put there for convenience, is marked on the plot as ‘fence first.’ Mr. Maydole testified that Medlenka told him no part of said block, except that reserved in the trust deed, was his homestead, and that he, before he loaned the money for Mrs. Downing, examined the premises, and found that all of said block, except the yard of the house, was a waste and not in use. That the fence was dilapidated and down, and nothing about it indicated a present use of it; that if he had known that Medlenka and his wife put any homestead claim to that part of the block outside of the fence separating the yard from the balance of the block, he would not have loaned the money upon it. That the representations as to the extent of the homestead were made in the trust deed, which was fully understood by Mrs. Medlenka when she signed it, and that upon the faith of these representations, and upon his examination of the premises, the money was loaned, and would not have been loaned otherwise.”

“Mrs. Medlenka testified that the kitchen garden was on that part of the block outside of the yard fence, which lies adjoining the yard and the fence of the first tenement house.”

“Medlenka and his wife testified that the object and purpose of the division fence separating the yard from the garden was to keep the chickens out of the garden.”

“Liskow, Schieffer, and one or two others, testified that, for many years before the date of the trust deed, the whole block was inclosed and a part of it used for a garden, but that for some time before the tenement houses were put up, that part of the block outside of the yard was idle and waste, except a small kitchen garden, the location of which has already been shown, and that the fence was about the middle of the block, which was moved in. There was no evidence tending to show that any part of the block, from the fence separating the tenement house from the house occupied by Medlenka and his wife, had been used at any time since the borrowing of the money from plaintiff for any purpose of a home, except that part between fence first and the yard fence.”

… “That the part of said block between the yard and the fence separating the tenement houses, indicated as fence one, was, at the time of borrowing the money, in fact used as a vegetable garden, but that Medlenka represented to Maydole that it was no part of the homestead, and that they did not claim it as such, and that but for these representations, and the defining the limits of the homestead by the trust deed, the money would not have been loaned.”

The court further proceeds: “That all the houses, cisterns and outhouses connected or used by defendants are upon the lot fifty by one hundred feet, as described in the trust deed, and that the same is worth $1,260, and is reasonably sufficient for a homestead for defendants, and that they themselves so fixed their homestead before obtaining the money with which they built three tenement houses, which have since been rented out, and the rent used in support of the family.”

… “That having thus limited and defined their homestead, and there being reserved a homestead for the family, upon which all the buildings and conveniences used in connection with their house was located, and this appearing to be a reasonable home place for defendant, and not an evasion of the constitutional provision on that subject, that defendants are estopped, as...