Schulz v. L. E. Whitham & Co.

• Decision Date: 30 April 1930
• Docket Number: No. 5407.,5407.
• Parties: SCHULZ v. L. E. WHITHAM & CO.
• Court: Texas Supreme Court

Page 1093

27 S.W.2d 1093

SCHULZ v. L. E. WHITHAM & CO.

No. 5407.

Supreme Court of Texas.

April 30, 1930.

Error to Court of Civil Appeals of Second Supreme Judicial District.

Suit by Clara Schulz against L. E. Whitham & Company and others. Judgment for plaintiff was reversed and rendered in part and affirmed in part (14 S.W.[2d] 881), and plaintiff brings error.

Judgment of district court affirmed.

Kilgore, Rogers & Thornton, of Wichita Falls, for plaintiff in error.

Carrigan, Britain, Morgan & King and Milburn E. Nutt, all of Wichita Falls, for defendant in error.

CURETON, C. J.

The only material question for review in this case is whether or not the property in controversy was in fact the homestead of Dr. Vick at the time the pavement assessment lien or mechanic's lien for pavement work of the defendant in error arose. The uncontradicted evidence shows that Dr. Vick bought the land in question from Clara Schulz, who reserved a vendor's lien to secure a part of the purchase price, and that at the time he bought the property he was married, with adult children, all of whom were married and constituted no part of his family. For some time prior to the purchase of this property, he and his wife had not lived together, but he recognized his moral and legal duty to her as his wife to support her, and the evidence shows that he was supporting her at the time, and continued to do so down to the time of the trial of this case. Within about thirty days after Dr. Vick purchased the property, he moved on it, and lived there, and was living there in his own house on the property at the time of the bringing of this suit. His wife never lived on the property, although on one occasion, while he was sick, she visited him for a short time. After several months' use of this property as his home, Dr. Vick executed a mechanic's lien to the defendant in error, to secure it for the paving cost, and the cross-action brought by the defendant in error, L. E. Whitham & Co., was upon this instrument as well as upon the paving assessment levied against the property by the city. The mechanic's lien was not executed by Dr. Vick's wife. The defendant in error, however, claims that its lien to secure the paving assessment, or cost of paving construction, is superior to that of the plaintiff in error, upon the ground that the property was not homestead property at the time the assessment was levied against it, nor at the time that Dr. Vick executed the mechanic's lien. The trial resulted in a judgment, in so far as the homestead question is concerned, in favor of the plaintiff in error, and the defendant in error, L. E. Whitham & Co., prosecuted an appeal to the Court of Civil Appeals, where that portion of the judgment was reversed and rendered. The case was tried in February, 1928, at which time Dr. Vick had been living in Wichita Falls for six years. He bought the property on the 14th of April, 1925, and moved into the house as shown above. If the facts entitled Dr. Vick to a homestead, the property became homestead at the time he moved onto it. He was married, as stated before, at the time he bought the property and moved into the house, and has been continuously ever since. He testified in part:

"From about thirty days after I bought the house, and moved in, I have lived in the house; I still live in it; I have one room there, my family is not there. I have had my room there since 30 days after I bought it. I was so using it ever since I moved in, and was so using it in April, on the 16th of April, 1926. I have been all the time since then. * * *

"I am the same J. T. Vick who is named one of the defendants in this case. I am a defendant as well as L. E. Whitham and company. I said that I moved in it thirty days after I bought it and have remained there. I am a married man. I am not living with my wife at this time. It has been five years since I lived with my wife; yes, it is a fact that I became separated from my wife about five years ago; as to whether that separation was permanent, well I suppose so, we have not gone back together. We have not had any relations as husband and wife. I take care of her is all, but I have been separated from her. I have not lived with her since that time. She has never lived with me in the property. She came to the house one time when I was in bed sick, that was either in 1926 or 1925. She stayed there about 10 minutes, came to the house—just came to the sick room a few minutes. I do not occupy the place now, other than one room. I let a lady stay there to do my cooking. As to whether I have the use of the entire house or just one room in the house, well just one room, and in the dining room of course I come to my meals. I have exclusive control over only one room in the house. I signed a mechanic's lien contract in favor of L. E. Whitham & Company for pavement improvements. At the time that I signed that my wife and I had permanently separated. I did not claim that as a homestead at that time. I have never claimed it as a homestead since that time, nor has any part of my family resided there. I am the only member of my family that has resided there in that house at any time and I occupied it only as a single man—I have not formally gone ahead and got a divorce myself, but I have no legal connection—I am not connected with my wife, except I am still legally married, and supporting her. My wife lives in separate property, separate and apart from me. She lives in Healton, Oklahoma, and has never resided in any part of those premises. * * *

"During those years I have provided for my wife; I have taken care of her. I do not have any unmarried children. I have only two and they are both married. The housekeeper I have, I simply employ her to take care of the house for me in consideration of her services in cooking my meals, and taking care of the house; she is working for me."

In March, 1927, Dr. Vick deeded the property in controversy to John Davenport and Robert Crane. His wife joined in the execution of that deed at that time, and her acknowledgment was taken. The deed was executed and the acknowledgments taken in Wichita Falls, where Mrs. Vick was until March, 1927. Dr. Vick says, "She just left here in 1927."

The above is all the testimony bearing on the homestead question, except perhaps the mechanic's lien executed by Dr. Vick to secure the paving cost. This instrument was dated April 16, 1926. In the initial paragraph of the instrument is found the following language, which appears in the statement of facts just as it appears in this opinion: "Dr. J. T. Vick, a single man, owner of Lot 18 in Block 13 of Jalonic Addition, fronting 52.2 feet on North side of sixteen street, in the city of Wichita Falls, Texas, known as number _____ which is _____ the homestead of the undersigned."

This instrument was not reformed by the decree, and so far as this record is concerned it must be accepted as having been written as was intended. However, in deciding the case we may disregard the recitations quoted above and still reach the same conclusion.

The case was tried before the judge without a jury, and the trial court found that the property at the time the defendant in error sought to impress it with a lien was held and used and occupied by Dr. Vick as a homestead. We agree with the conclusion of the trial judge, and will now state our reasons therefor.

We regard it as settled law that the husband is the head of the family, and as such has the right to select the homestead. 13 R. C. L. p. 557, § 17; Hanes v. Hanes (Tex. Com. App.) 239 S. W. 190, 191; Kelly v. Nowlin (Tex. Civ. App.) 227 S. W. 373; Tackaberry v. City National Bank, 85 Tex. 488, 22 S. W. 151, 299; Ward v. Baker (Tex. Civ. App.) 135 S. W. 620, 623. It is equally clear that if the husband by his acts uses property as a home, it becomes a homestead by dedication, even though he and his wife may both declare to the contrary. Texas Land & Loan Co. v. Blalock, 76 Tex. 85, 89, 13 S. W. 12; Ruhl v. Kauffman & Runge, 65 Tex. 723, 734; Ward v. Baker (Tex. Civ. App.) 135 S. W. 620, 623; Little v. Baker (Tex. Sup.) 11 S. W. 549, 551. Likewise the rule is fixed in this state that the homestead right may attach although the wife may never move upon the property; that it becomes the homestead from the time of its dedication as such by the head of the family. Markley v. Barlow (Tex. Civ. App.) 204 S. W. 1013, 1014 (Writ Refused); Moores v. Wills, 69 Tex. 113, 5 S. W. 675; Henderson v. Ford, 46 Tex. 627; 13 R. C. L. p. 592, § 56. It is equally elementary that the renting of a homestead does not deprive it of its homestead character. Section 51 of article 16 expressly declares "that `any temporary renting of the homestead shall not change the character of the same.'" Bailey v. Bauknight (Tex. Civ. App.) 25 S. W. 56; Foreman v. Meroney, 62 Tex. 723. We have also reached the conclusion that the homestead estate exists when the husband resides on the property, even though the wife absents herself therefrom, so long as the husband recognizes and discharges his moral and legal obligation to support her. Woods v. Alvarado State Bank, 19 S.W.(2d) 35; Hall v. Fields, 81 Tex. 553, 17 S. W. 82; Speer & Goodnight v. Sykes, 102 Tex. 451, 119 S. W. 86, 132 Am. St. Rep. 896; Zapp v. Strohmeyer, 75 Tex. 638, 13 S. W. 9; Shook v. Shook (Tex. Civ. App.) 145 S. W. 682.

The authorities cited settle the question that although the husband and wife may be divorced, and although the children may have been awarded to her, and may not live with him, yet so long as they are minors, to whom he owes the duty of support, he is entitled to a homestead as the head of a family.

We think the rules which permit the homestead exemption referred to above apply with the same force where the family consists of an absent wife, but to whom the husband owes and discharges the duty of support. If the children, to whom is due and who receive support, can be absent from the parental...