S. Jacobs, Bernheim & Co. v. Hawkins

• Citation: 63 Tex. 1
• Decision Date: 12 December 1884
• Docket Number: Case No. 1553.
• Court: Supreme Court of Texas
• Parties: S. JACOBS, BERNHEIM & CO. v. J. W. HAWKINS ET AL.

63 Tex. 1

S. JACOBS, BERNHEIM & CO.

v.J. W. HAWKINS ET AL.

Case No. 1553.

Supreme Court of Texas.

Dec. 12, 1884.

APPEAL from Hunt. Tried below before the Hon. Green J. Clark.

Suit by appellants against J. W. Hawkins and S. M. Hawkins upon a note for $1,111.80, and against J. W. Hawkins and his wife, S. T. Hawkins, to foreclose a mortgage executed by J. W. Hawkins and wife to appellants on lot No. 8 and half of lot No. 1, in block No. 15, in the town of Greenville, and block No. 27, to secure its payment. The defendants set up no defense against the note, but the defendants J. W. Hawkins and his wife, S. T. Hawkins, answered that lot 8 and half of lot No. 1, in block 15, were at the time of the execution of the mortgage, and continued to be, a part of their homestead, and asked that the mortgage be held void as to said lots. On the trial the court, over objections of plaintiffs, permitted defendants to open and conclude the argument.

The cause was tried by a jury, who found in favor of appellants on the note, and in favor of J. W. Hawkins and wife in regard to homestead, and judgment was rendered in favor of appellants against J. W. Hawkins and S. M. Hawkins for the sum of $1,298.33 1/3, and canceling appellants' mortgage upon lot No. 8 and half of lot No. 1.

M. M. Brooks and Hunter & Putnam, for appellants, cited: Wheeler v. Moody, 9 Tex., 372;Andrews v. Marshall, 26 Tex., 212;Graham v. Gautier, 21 Tex., 111;Buford v. Bostick, 58 Tex., 63;Andrews v. Hagadon, 54 Tex., 576;Evans v. Womack, 48 Tex., 230;Iken v. Olenick, 42 Tex., 195; Ashton v. Ingle, 20 Kan., 670; American R., vol. 27, p. 167.

Brown & Upthegrove and Mathews & Weyland, for appellees, cited: Shryock v. Latimer, 57 Tex., 674;Arto v. Maydole, 54 Tex., 244;Andrews v. Hagadon, 54 Tex., 571;Thomas v. Williams, 50 Tex., 269;Const., art. XVI, secs. 50, 51; R. S., 2235-6; Lee v. Stowe, 57 Tex., 449; R. S., art. 1299; Teal v. Terrell, 58 Tex., 261;Hancock v. Morgan, 17 Tex., 582;Nolan v. Reed, 38 Tex., 425.

STAYTON, ASSOCIATE JUSTICE.

The fact of homestead or not could not be determined by any declaration of opinion made by J. W. Hawkins as a witness, and the court did not err in excluding the answer to a question which called for such opinion.

The answer of the defendants J. W. and S. T. Hawkins did not put in issue the execution of the note or mortgage on which the suit was brought; nor did it in any manner question the sufficiency of the consideration on which they were executed, and the evidence of the witness Harby in this respect was unimportant and would not have tended to establish any fact which the instruments themselves did not establish fully.

The declaration of Hawkins as to the character of the property secured by the mortgage was properly excluded; for if, in fact, the property was homestead, the mere declaration of the husband to the contrary could not make it that which it was not in fact.

In cases in which property has not been used as homestead, or is not so used, the declarations of a husband would seem to be admissible for the purpose of showing that there was no intention so to use it as to make it the homestead.

And this would seem to be true, where a place formerly used as homestead is not longer occupied; and so, for the purpose of indicating an intention never again to use it, which, coupled with the act of removal, would amount to an abandonment.

But where in fact the property is actually in use for homestead purposes, neither the declaration of the husband or wife, or both, can change its character. Medlenka v. Downing, 59 Tex., 40.

The issue made by the defendants' answer was, whether the property was occupied and used as homestead at the time the mortgage was given, which the appellants were seeking to foreclose, and not whether they had abandoned it after it had once become a part of the homestead.

The bill of exceptions taken to the action of the court permitting counsel for appellees to open and conclude the argument does not show that the admissions required by rule 31 were not made and properly entered of record, and, in the absence of such a showing, the presumption is that everything was done to entitle the appellees to that right, and that the court below ruled correctly.

If we consider only detached portions of the charge given, they might be held objectionable; but a charge cannot be so considered. The whole charge must be looked to, and, if taken all together, it correctly gives the law applicable to the case, and there be nothing in it calculated to mislead, it is sufficient.

The charge given in this case fairly presented to the jury the law upon which, under the evidence, they were directed to determine whether the property in controversy was homestead at the time the mortgage was given, and that was sufficient.

It did not exclude from the jury the inquiry as to the intention with which the property was used in connection with the lot on...