Parker v. Cook

• Decision Date: 21 October 1909
• Citation: 122 S.W. 419
• Parties: PARKER v. COOK et ux.
• Court: Texas Court of Appeals

122 S.W. 419

PARKER v. COOK et ux.

Court of Civil Appeals of Texas.

October 21, 1909.

Rehearing Denied November 18, 1909.

Appeal from District Court, Red River County; Ben H. Denton, Judge.

Suit by J. R. Cook and wife against James A. Parker to enjoin an execution sale. From a decree for plaintiffs, defendant appeals. Reversed, and judgment rendered dissolving injunction.

George Morrison and Chambers & Black, for appellant. Kennedy & Robbins, for appellees.

HODGES, J.

The appellant was the owner of two judgments against the appellee J. R. Cook, upon which executions were issued in April, 1908, and levied upon 61 acres of land situated in Red River county, Tex., as the property of the appellee Cook. After the levy the officer making it advertised the property for sale, according to law. Before the sale day arrived, this suit was instituted by J. R. Cook and his wife for the purpose of having the sale enjoined, alleging that the land was their homestead, and not subject to the executions. The petition was presented to the district judge, and a temporary order granted restraining the officer from proceeding with the sale, which order was, upon final hearing before the court in term time, made perpetual. The case was tried before the court without a jury, and the findings of fact made and filed are, substantially, as follows: (1) That the appellant was the owner of the judgments mentioned, and executions were issued and levied upon the property in controversy. (2) That the appellee J. R. Cook was the head of a family, and had been since 1892. (3) That since the marriage of Cook and his present wife they had lived upon and occupied as their home a house and lots in the city of Clarksville till November, 1907. That this property so used as their home was the community property of Cook and a former wife; the present wife having no interest in it beyond homestead claim. (4) That after their marriage Cook and his present wife purchased and improved the land in controversy, placing thereon a house, and putting some of the land in cultivation; but that they had never lived on it or occupied it as a home. (5) That three or four years prior to the time of the trial the appellee J. R. Cook procured a loan of $500, to secure which he executed a deed of trust upon the 61 acres involved in this suit. That this loan was still unpaid. That at the time the loan was procured Cook and wife designated the house and lots in Clarksville upon which they lived as their homestead. (6) That the appellee was a carpenter, following his trade when he could find employment. That some time in November, 1907, on account of dull business in his line, and for the purpose of obtaining money to meet his obligations and to support his family, Cook placed the 61 acres of land on the market, but that before the levy of the writs issued as hereinbefore stated he succeeded in selling his home in Clarksville. (7) That Mrs. Cook was induced to sign the deed to the Clarksville property by the promise of Cook that they would move onto and occupy the 61 acres as a home, and that she could have that as a home for herself and her children. That Cook immediately thereafter took the 61 acres off the market and had openly claimed it as his homestead. (8) That at the time it was so designated by Cook as his home the land was occupied by tenants and possession could not be obtained till January 1, 1908. (9) That Cook, failing to get employment at home, first decided to leave his family at their home, having for that reason refused to rent the place until after January 1, 1908, but subsequently concluded to move with his family to Arlington to reside temporarily while engaged in his employment. He thereupon rented the place for the year 1908, but no longer. (10) That Cook sought employment at Ft. Worth for the purpose of supporting his family and obtaining means wherewith to pay off the mortgage debt on his place. That the 61 acres were ready for occupancy, needing no improvements for that purpose, but that the debt was still unsatisfied. (11) That after the sale of their home in the city of Clarksville appellees openly and notoriously claimed the premises in controversy as their home, no other having been acquired, and openly expressed their intention to occupy it as soon as the indebtedness against it could be paid off. That the evidence failed to show that the appellant did not have full knowledge of these facts at the time his judgments were rendered and executions issued. The twelfth finding is substantially a repetition of what is embodied in one or more of the preceding. From the foregoing the court concluded as a matter of law that the homestead character was impressed upon the premises at the time the writs were levied, and for that reason the land was not subject to execution.

The court having found as a fact that the homestead right existed at the time the writs were levied upon the property, and that the appellant, Parker, had failed to show that he had no notice of the intention of Cook and wife to use and occupy the premises as a homestead, it becomes our duty to examine the evidence and ascertain whether or not it is sufficient to justify the findings made and the conclusion of law based thereon. West End Town Co. v. Grigg et al., 93 Tex. 451, 56 S. W. 49. An examination of the testimony embodied in the statement of facts shows that the court in making his findings placed upon the testimony of the appellees, Cook and wife, the most favorable construction that was possible, and indulged every inference from the language used that was capable of supporting the conclusion reached. There are other facts, however, not included in the court's findings, which we think should be considered in disposing of the case. The petition alleges, and there seems to be no controversy upon that issue, that the tract of land in question was a farm situated two miles south of the city of Clarksville in Red River county. It is shown by the evidence that it was sufficiently improved to permit the use and occupancy by the family, without anything else being added. There was a dwelling upon it, and some of the land was fitted for cultivation. About November 1, 1907, according to Cook's testimony, he sold his homestead in the city of Clarksville, and then for the first time conceived the intention of making this farm his homestead in the future. Up to that date it had by an express designation been excluded from the premises composing the homestead proper. He did not move upon the premises at that time because they were rented for the year 1907, and he could not get possession. About the first of the following year he decided to go to Arlington, in Tarrant county, in search of employment, and to leave his family in Red River county; but subsequently he decided to take his family with him to Tarrant county. He says: "I never did anything towards moving out to that place in the country, except to intend to move out there. I did no overt act; only decided to move out there; and then I moved out to Tarrant county, where I now live, and went to work at the carpenter's trade in Ft. Worth. I am still engaged in this business. I intend to move out to this farm some time. I have had chances to rent it out this fall several times, and I would not do it. At the time I moved to Tarrant county, I did not know when I was going back, further than when I got my job done. When I went out there I had no fixed intention in my mind as to the time I would come back and occupy this land, for I had rented it. When I moved out to Arlington, I said I was going out there to get work, that I could not get work here, that my business was a carpenter's, and not that of a farmer, and that I was going out there not only to get money to pay debts, but to make a living for my family, and that I could not make a living for my family here. * * * I told everybody I was going out there to live until I could get work here, to make a living at my trade. I was in debt here and could not get out. I knew that I could not make a living out there at that little place, and that is the reason I left here. If I had known I could make a living out there, I would have went right to the farm. I did not know that I could make it, and therefore went to Ft. Worth."

The foregoing testimony of Cook presents this situation: A carpenter, who disclaims being a farmer, and who avows his intention of continuing to work at his trade as a means of providing a living for his family, refusing to reside upon a farm because of the fact that he cannot make a living upon it, and in effect saying that he does not intend to occupy it as a home until such time as he can pursue his calling in that vicinity under conditions sufficiently remunerative to enable him to make money enough to support his family and pay his debts. The excuse which he gives for not occupying the premises is the absence of one of the very conditions which makes the acquisition of the homestead and its use and occupancy desirable—its fitness as a place to live upon and support his family. The only evidence with which we are furnished of any bona fide intent upon the part of Cook to use and occupy the premises as a homestead consists of the statements made by himself and wife of what they intended to do at some indefinite time. The question then is: Are...