Phillips v. Texas Loan Agency

• Decision Date: 05 June 1901
• Citation: 63 S.W. 1080
• Parties: PHILLIPS et ux. v. TEXAS LOAN AGENCY.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

63 S.W. 1080

PHILLIPS et ux. v. TEXAS LOAN AGENCY.¹

Court of Civil Appeals of Texas.

June 5, 1901.

Error from district court, Dallas county; J. J. Eckford, Judge.

Action by the Texas Loan Agency against J. S. Phillips and wife. Judgment for plaintiff, and defendants bring error. Affirmed.

D. H. Morrow and A. E. Firmin, for plaintiffs in error. Frost, Neblett & Blanding, for defendant in error.

NEILL, J.

This suit was brought by defendant in error against plaintiffs in error, in the ordinary form of an action of trespass to try title, to recover a parcel of land lying and situated in the city of Dallas, and Dallas county, Tex., and being part of block B of Thomas Field's subdivision of the Ross homestead, beginning 86 feet from the north corner of Hoard and Orange streets; thence with the northeast line of Orange street 129 feet to the intersection of Collin street with Orange street; thence along the southeast line of Collin street 100 feet to an alley; thence southeast along said alley 129 feet to a stake; thence southwest parallel with Hoard street 100 feet to the beginning; being 100×129 feet,—and the rents and profits issuing from said land, alleged to be $500 per annum. Plaintiffs in error (defendants below) answered by a plea of not guilty, and specially that the land in controversy is and was their homestead at the time the deed of trust under which defendant in error claims title thereto was executed by them. By a supplemental petition, defendant in error denied that the land was the homestead of plaintiffs in error, and by special plea, in which facts were averred which are incorporated in our conclusions of fact, pleaded that they were estopped from asserting the homestead claim to the premises. The case was tried before a jury, and the trial resulted in a verdict and judgment in favor of defendant in error, from which judgment this writ is prosecuted.

Conclusions of Fact.

On March 28, 1889, plaintiffs in error, who were husband and wife, owned, and had owned since the 31st day of March, 1887, the parcel of land indicated by the following diagram:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

—Which is situated in the city of Dallas, Tex., and is a part of block B of Thomas Field's subdivision of the Ross homestead, beginning at the south corner of said block B; thence northwestwardly with the northeast line of Orange street 215 feet to the southeast corner of Collin street, the west corner of said block B; thence northeastwardly with the said line of Collin street 200 feet to the south side of an alley; thence southeastwardly at right angles to said Collin street with the line of said alley 215 feet to the northwest corner of Hoard street; thence southwestwardly to the line of said street 210 feet to the place of beginning. The description given is the one contained in the deed under which they held. On and prior to March 28, 1899, their dwelling, in which the family, consisting of themselves and one child, lived, which was a two-story building, was situated on the west 90 feet of said parcel of land, upon which was also situated their barns, coal and wood shed, and other outhouses appurtenant to their dwelling, as is indicated on the foregoing plat. Ever since that time they have continued to reside and occupy that part of the land upon which their dwelling, outhouses, etc., are situated, as their homestead. At that time, and when the loan for which they executed the deeds of trust hereinafter described was negotiated, the 90 feet upon which they resided was inclosed by a substantial picket fence, which separated it from the remaining parts of the land, which includes that in controversy, and is indicated by dotted lines. There was then, and is, an alley between the part of the land upon which they lived and that which is sued for. On the east 100 feet of the block, which does not include the 10-foot alley, which separates it from the 90 feet upon which plaintiffs in error have their domicile, there is, and was at the time stated, another resident building, which was rented out by plaintiffs in error. The part upon which this rented house was situated fronted 86 feet on Orange street, at which distance there was a fence extending back at right angles from said street 100 feet to said alley, which fence separated that part of the ground upon which the rented house is situated from the property sued for, which lies between the alley and Orange street, and is bounded on the north by Collin street. The evidence upon which plaintiffs in error base their claim to this property being a part of their homestead at the time the deed of trust under which defendant in error claims was executed is that from the time they built and commenced to reside on the 90 feet of the ground up to the time of the trial of this case their carpets were occasionally cleaned on it, the boys in the neighborhood sometimes played thereon with their son, sometimes their cow was milked on it, occasionally they had wood piled there, which was cut or sawed and thrown therefrom into their yard, and now and then their horse and cow grazed there. They claim that when the deed of trust was executed the alley between it and their residence property was closed, and that there was only one fence therealong, which was on the side next to...