Moss v. Smith

• Decision Date: 30 April 1902
• Parties: MOSS et al. v. SMITH.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

68 S.W. 533

MOSS et al. v. SMITH.¹

Court of Civil Appeals of Texas.

April 30, 1902.

Error from district court, Gillespie county; M. D. Slator, Judge.

Action by Amzie Moss and another against C. W. Smith. From a judgment in favor of defendant, plaintiffs bring error. Reversed.

Walter Anderson, for plaintiffs in error. Moursund & Moursund, for defendant in error.

FLY, J.

This is an action of trespass to try title to 100 acres of land in Gillespie county, instituted by Mrs. Amzie Moss, joined by her husband, David Moss, against appellee. The cause was tried by the court and judgment rendered in favor of appellee There is no statement of facts, and this court is necessarily confined to the findings of facts for its conclusions of facts. The land in controversy was the separate property of Lucy R. Smith, the first wife of appellee and the mother of Mrs. Moss. It was paid for with money realized by her from the sale of a tract of land owned by her in her separate right. She died in 1884, leaving, surviving her, appellee and her daughter Amzie, then a child. In 1886 appellee married his present wife, and occupied the land as his homestead until 1887, when he bought a tract of land in Wilson county, and moved with his wife and children to it and made it his homestead. He rented the land in controversy to a brother. The court found that he occupied the Wilson county land as his home "with the avowed purpose of making the same his home in the future." He returned with his family to the land in Gillespie county, after living a year in Wilson county. Mrs. Moss, being a minor at the time, married in 1899. The rents appropriated by appellee fully equaled in value improvements made by him.

It is provided in the constitution (article 16, § 52) that on the death of the husband or wife the homestead shall descend and vest as other property, and shall be governed by the same laws of descent and distribution, but that it shall not be partitioned among the heirs so long as the survivor may elect to use or occupy it as a homestead. Under this constitutional provision, upon the death of Lucy R. Smith her land descended and vested in her daughter, subject to the right of the surviving husband to use or occupy the same as a homestead. The only question, therefore, presented by the record is as to what effect the acquisition of the homestead in Wilson county had upon the homestead right appellee had in the land of his deceased wife. That a new homestead was obtained,...