Reece v. Renfro

• Decision Date: 22 April 1887
• Citation: 4 S.W. 545
• Court: Texas Supreme Court
• Parties: REECE and others v. RENFRO and others.

Page 545

4 S.W. 545

REECE and others v. RENFRO and others.

Supreme Court of Texas.

April 22, 1887.

Appeal from circuit court, Johnson county.

Bledsoe & Fisher, for appellants. Brown, Ramsey & Crane, for appellees.

WILLIE, C. J.

Renfro brought this action of trespass to try title to recover of D. W. and Jane Reece 150 acres of land, and at the same time sued out a writ of sequestration. The defendants claimed the property as their homestead, and, having alleged that the land in suit was part of a 320-acre tract in which the other appellees claimed an interest, had them made parties defendant, and prayed for a partition.

The following are substantially the facts of the case: The land in controversy was patented September 23, 1870, to William Reece, assignee of Amasa Howell. The Howell certificate belonged jointly to William and his brother, D. W. Reece. Appellants are husband and wife, and lived on the land before the patent was granted, and William Reece lived with them. William moved to another place in 1865. D. W. Reece and family, in 1867 or 1868, rented the place to one Turpin, and removed to Arkansas. In October, 1871, William Reece, under verbal instructions from D. W. Reece, deeded the south half of the 320 acres to Abraham Reece. The latter paid part of the consideration to D. W. Reece, and the rest of it was paid to him, after Abraham's death, by his children. Abraham Reece went into possession of said south half in 1871, and occupied it till his death, and his children have occupied it ever since. D. W. Reece and wife returned from Arkansas to Texas in 1875, and lived in Tarrant county, and in 1877 lived in Ellis county, on a place different from the one in controversy. In the fall of 1877, D. W. and wife moved on this land, renting it from William Reece, and as such renters occupied it until put off by the officer executing the writ of sequestration. William Reece and wife, on July 25, 1882, sold to Renfro a part of the 320-acre tract, which is the land in controversy. Not till after that time had Reece ever heard of the claim of D. W. and wife to the land sold to Renfro.

There was proof showing that Mrs. Reece left the homestead unwillingly when the family removed to Arkansas, and that she frequently, while living in that state, expressed her intention to return and reclaim the homestead she had left. There is nothing in the evidence tending to show that these facts were known to Renfro when he purchased, or to William Reece, who made the deed to him.

The court, to whom the cause was submitted, rendered judgment in favor of Renfro for the 150 acres, and quieted the title of the other appellees in the portions of the 320 acres respectively claimed by them. From this judgment D. W. Reece and wife have appealed to this court.

It has been frequently held by this court that the homestead right may be lost by abandonment, and that, to constitute an abandonment, it is not necessary that another homestead shall have been acquired. Jordan v. Godman, 19 Tex. 273; Smith v. Uzzell, 56 Tex. 315; Woolfolk v. Ricketts, 48 Tex. 28. One instance in which an abandonment has been conclusively presumed against both husband and wife is where they have removed from Texas to another state. In such case the wife is held to have relinquished any right of homestead which she might have retained had she continued an inhabitant of this state. "Her removal," say the court, "from the state, is inconsistent with any right remaining to her former homestead, and effectually precludes her from afterwards asserting such right." Jordan v. Godman, 19 Tex. 275. This principle was reasserted in the case of Smith v. Uzzell, 56 Tex. 315, and it was held that the power of the husband to bind his children by such abandonment was clear, and the rights of the wife were lost by her voluntary leaving the homestead, and accompanying the husband when he abandoned it.

The only difference between those cases and the present lies in the fact that in them the wife made no declarations as to her supposed abandonment, while in this she expressed an unwillingness to leave, and declared upon several occasions, while in Arkansas, an intention to reclaim her homestead in Texas. These statements do not seem to have been made known to the appellees, or the persons under whom they claim title. The effect of such declarations is fully passed upon in Woolfolk v. Ricketts, supr...