Powars v. Palmer

• Decision Date: 26 May 1904
• Citation: 81 S.W. 817
• Parties: POWARS v. PALMER et ux.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

81 S.W. 817

POWARS v. PALMER et ux.^*

Court of Civil Appeals of Texas.

May 26, 1904.

Appeal from District Court, Harris County; Norman G. Kittrell, Judge.

Action by Will Powars against I. N. Palmer and wife. From a judgment in favor of defendants, plaintiff appeals. Reversed.

E. P. & Otis K. Hamblen, for appellant. A. C. Van Velzer, for appellees.

PLEASANTS, J.

This is an action of trespass to try title brought by the appellant against the appellees to recover certain premises situated in the city of Houston, and duly described in the petition. The defendants answered by general denial and plea of not guilty, and specially pleaded that plaintiff claimed the premises in controversy through and under an execution levy and sale and a sheriff's deed executed on June 2, 1903, and that at the time of said levy and sale the property in question was appellees' homestead, and said pretended sale was therefore void. The answer concludes with a prayer for judgment canceling said sheriff's deed, and quieting defendants in the title and possession of said premises. In reply to this plea, plaintiff filed a supplemental petition in which he alleges, in substance, that on April 22, 1902, he recovered a judgment against the defendant I. N. Palmer in the district court of Harris county for the sum of $692.66; that said judgment was properly recorded in the judgment lien records of Harris county on May 5, 1902; that an execution was duly issued on said judgment, and levied upon the premises in controversy on March 11, 1903, and said premises were regularly sold under said levy on June 2, 1903, and purchased by plaintiff. It is further alleged that, at the time said judgment was recorded, no part of the premises in controversy was the homestead of the defendants, but that they at that time owned and occupied as their homestead other premises, situated in the city of Houston, and described as lots Nos. 1, 2, and 3 in block 19 in Brunner's Addition. The trial in the court below was to the court, and resulted in a judgment in favor of the defendants.

The facts are undisputed, and, succinctly stated, are as follows: Some eight or nine years prior to the institution of this suit, the appellees, who were then and are now husband and wife, purchased from one Darling lots 1, 2, and 3 in block 19 in Brunner's Addition to the city of Houston. They immediately took possession of said premises, and continued to occupy same as their home until the spring of 1903, when they moved upon the premises in controversy. When they purchased said property they executed notes to Darling for $900 of the purchase money, and assumed an existing indebtedness upon two of said lots, upon which the improvements were situate, in favor of the Michigan Loan Company. This indebtedness was payable in monthly installments, and was secured by a mortgage or mechanic's lien upon said two lots. At the time they assumed the indebtedness to the loan company, appellees understood that it amounted to $700. After paying the maturing installments for several years, to the amount of $770, they ascertained on September 26, 1899, that the amount still due on the original indebtedness for which the property was bound was $1,139. When they made this discovery, they determined to make no further payments and to abandon the property. In the meantime the loan company had failed, and its affairs were in the hands of a receiver appointed by the federal court for the Northern District of Texas. Appellee I. N. Palmer informed the agent of the loan company at Houston that he intended to give up the place, and said agent authorized him to hold the property for the loan company until its lien could be foreclosed. Appellees continued to live upon said property until April, 1903. The vendor's lien notes executed by the appellees in favor of Darling came into the possession of appellant, and he brought suit thereon against appellees in the district court of Harris county, and secured a judgment on April 25, 1902 for $692.56, with foreclosure of the vendor's lien upon said premises. On May 5, 1902, an abstract of this judgment was duly recorded in Harris county. An order of sale was issued on said judgment, and said property was sold thereunder in July, 1902, and bought in by appellant. A short time thereafter said two lots upon which the loan company held a lien were again sold under the order of the federal court to satisfy said lien, and were bought in by the receiver for said company. The property in controversy was purchased by appellees on January 9, 1902, with the intention of making it their homestead. Their intention to abandon the property on which they were living, and to make their home upon the property in controversy, was a matter of general knowledge among their friends and acquaintances. At the time they determined to give up the place on which they were living, the indebtedness due on said place exceeded its value several hundred dollars. Soon after purchasing the property in controversy, appellees cleaned the brush and undergrowth therefrom, marked out the lines preparatory to having it fenced, and set out some shrubbery thereon. They also procured a portion of the material with which to fence the lots, and spoke to a contractor in regard to building said fence. They began the erection of a house on the property in March, 1903, and moved into said house on April 6, 1903, and were...