Pace v. McEwen

• Decision Date: 03 June 1981
• Docket Number: No. A2722,A2722
• Parties: Joe Dudley PACE, Appellant, v. John J. McEWEN, Jr., Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 816

617 S.W.2d 816

Joe Dudley PACE, Appellant, v. John J. McEWEN, Jr., Appellee.

No. A2722.

Court of Civil Appeals of Texas, Houston (14th Dist.).

June 3, 1981.

Rehearing Denied July 1, 1981.

Richard G. Strong, Casseb, Leon, Rodgers, Strong & Pearl, San Antonio, for appellant.

Pat Maloney, Jack Pasqual, George LeGrand, San Antonio, for appellee.

Before J. CURTISS BROWN, C. J., and PAUL PRESSLER and JUNELL, JJ.

JUNELL, Justice.

This is an appeal from a post-judgment order that appellant Pace turn over his residence in Harris County to the sheriff for sale under a writ of execution to enforce a judgment against him. Appellant's principal argument on appeal is that the property is Pace's homestead and, thus, exempt from execution. We affirm.

In 1973 suit was filed by appellee, the independent executor of the estate of Bessie Spence, deceased, to recover damages for the alleged fraud practiced by Pace upon the decedent during her lifetime. Acting as Spence's stockbroker, Pace allegedly persuaded her to make gifts to him of certain mutual fund shares. Judgment in that suit was rendered against Pace for $242,271.75. After appeal the judgment became final. Thereafter, in the same suit in which the judgment had been rendered, interrogatories were filed as provided by Tex.R.Civ.P. 621a to obtain information to aid the plaintiff in the enforcement of his judgment. Answers to the interrogatories revealed the only property owned by Pace was his residence located at 511 Lovett, Houston, Texas, which property he claimed to be his homestead. Still later, again in the same suit, a motion in the nature of a bill of discovery and for declaratory relief was filed in order to determine the homestead status of the property. Said motion was amended twice and a hearing was held on June 9, 1980, at which time the Court found the subject property not to be homestead and, therefore, not exempt from execution and ordered the property turned over to the sheriff of Harris County for sale under execution.

Appellant's first four points complain of the trial court's finding that the property was not exempt as homestead. The burden of proof on the issue of homestead status is on the homestead claimant. Burk Royalty Company v. Riley, 475 S.W.2d 566 (Tex.1972). The only evidence presented at the hearing consisted of the oral testimony of Mr. Pace and excerpts from the transcript of his testimony given at the time of the trial of the original suit. His testimony at the hearing was that in 1967 he purchased the home while unmarried and has used it as a residence for himself and his mother since that time, except for an interval during which it was uninhabitable due to fire damage; that he had claimed a homestead exemption for the property since its purchase by reason of his mother's dependency upon him; that he had always considered it his homestead; that he made mortgage payments of $300 to $400 per month on it out of a bank account into which he had deposited the monthly income from the Mutual Fund shares the subject of the original lawsuit; that he received income from the shares from 1966 to 1971; and that after a fire in the home, the $33,000 to $34,000 balance on his mortgage was paid off by insurance. He also testified that a second lien exists on the property, the result of a $10,000 loan made to him in 1972, the proceeds of said loan having been used to pay his personal living expenses, and which indebtedness remains outstanding.

No findings of fact or conclusions of law were requested or filed. In their absence the judgment of the trial court must be affirmed if it can be upheld on any legal theory that finds support in the evidence. Bishop v. Bishop, 359 S.W.2d 869 (Tex.1962). The only evidence offered to establish Pace's homestead claim was that of Pace himself, and his testimony was not free from contradiction. His testimony regarding the source of his mortgage payments during the years he made mortgage payments did not rule out the possibility that the source of those payments, at least in part, was the income from the Mutual Funds shares. He also testified that he had executed a second lien on the property for his personal living expenses, which is not a permissible use for which to mortgage homestead property. Finally, he testified that he claimed a homestead exemption on the property from the time he purchased the property in 1967, at which time a homestead exemption was not available for single individuals. Appellant has failed to meet his burden of proof to establish every fact essential to the existence of the asserted homestead right by evidence not of a doubtful nature. Vaughn v. Vaughn, 279 S.W.2d 427 (Tex.Civ.App. Texarkana 1955, writ ref'd n.r.e.). Furthermore, the evidence detailed above supports an implied finding by the trial court that the property in question had been acquired by Pace with funds fraudulently obtained by him from Mrs. Spence and the conclusion that the property was not Pace's homestead.

Appellant's first four points are overruled.

In his fifth, sixth, seventh, eleventh and twelfth points of error appellant makes various complaints relating to appellee's claim that the property in question is subject to a constructive trust. The court did not rule on the constructive trust claim, but based its order solely on the holding that the property was not...