Newton v. Calhoun

• Decision Date: 10 June 1887
• Parties: NEWTON v. CALHOUN and Wife.
• Court: Texas Supreme Court

4 S.W. 645

NEWTON v. CALHOUN and Wife.

Supreme Court of Texas.

June 10, 1887.

Appeal from district court, Travis county.

Osceola Archer, for appellant. Sheeks & Sheeks, for appellees.

STAYTON, J.

That the property in controversy was the homestead of the appellees for many years prior to the time they improved the lot on which the house stands in which they actually resided at the time this cause was tried cannot be denied; for with their family they actually lived in the house, and used the lot, and those contiguous to it, for the purposes of a home. It was a question of fact for the determination of the court below whether the use which the appellees had made of lot 5, since they have actually resided on lot 7, was such as to clearly indicate an intention no more to use lot 5 for the purposes of a home, and whether in fact lot 5 had not at all times been to some extent used for the purposes of a home. The simple fact that the houses on lot 5 had been rented, was not sufficient to divest that lot of its homestead character. The necessities of the family may have been such as to induce its head temporarily to rent to others the houses on lot 5 without any intention permanently to use it only for the purpose of renting. Without disregarding the evidence in the case, the court below may have come to the conclusion that this was true, and from his findings we infer did so. The constitution guards the homestead from loss by a mere temporary renting. If buildings not adapted to the purposes of a home had been erected on lot 5, and such disposition made of them and the lot as was inconsistent with a continued intention again to use the lot for the purposes of a home, a different case would be presented.

Lots 5, 6, and 7 were for a long time evidently the homestead of the family, and before either of them, while they continue under one common ownership, will cease to be a part of it, it must be applied to a use inconsistent with the uses for which the homestead is protected; to uses which clearly show an intention no longer to use it for the purposes of a home. The court below was justified in holding that no such use was made of the lot; that there was no intention to abandon it as a part of the home and to rent it permanently; that it was in fact and in law a part of the homestead of the family. There was evidence, slight though it may have been, from which the court was authorized to find that, while the houses on the lot were rented to others, the...