Seidemann v. New Braunfels State Bank

• Court: Texas Court of Appeals
• Writing for the Court: Blair
• Citation: Seidemann v. New Braunfels State Bank, 75 S.W.2d 167 (Tex. App. 1934)
• Decision Date: 10 October 1934
• Docket Number: No. 8002.,8002.
• Parties: SEIDEMANN et ux. v. NEW BRAUNFELS STATE BANK et al.

75 S.W.2d 167

SEIDEMANN et ux. v. NEW BRAUNFELS STATE BANK et al.

No. 8002.

Court of Civil Appeals of Texas. Austin.

October 10, 1934.

Rehearing Denied October 24, 1934.

Appeal from District Court, Comal County; Graham Gillis, Judge.

Suit by Adolph Seidemann and wife against the New Braunfels State Bank and another, in which the defendant the Guaranty State Bank filed a cross-action. From an adverse judgment allowing recovery on the cross-action, defendants appeal.

Affirmed in part, and in part reversed and rendered.

Schleyer & Luckett and F. B. Voight, all of New Braunfels, for appellants.

J. R. Fuchs, of New Braunfels, for appellees.

BLAIR, Justice.

Appellants, Adolph Seidemann and wife, Alvina Seidemann, sued appellees, New Braunfels State Bank and the Guaranty State Bank, to cancel a deed of trust executed by them January 19, 1931, on lots 12 and 14, block 48 of the Guenther addition to New Braunfels, to secure the payment of their note of even date for $1,750, payable seven months after date, alleging that the property was the separate property of Mrs. Seidemann, and the homestead of the Seidemanns at the time the deed of trust was executed. Appellees denied the homestead claim, and pleaded estoppel to assert such claim; and by way of cross-action appellee Guaranty State Bank, who purchased the note in question after maturity, sought judgment for a balance of $1,250 due on the note and to foreclose the deed of trust lien. The jury found that appellants were not actually using lots 12 and 14 in controversy in connection with and as a part of their homestead on the date they executed the deed of trust. Judgment was accordingly rendered against Adolph Seidemann for $1,250, with interest, and against both the husband and wife for foreclosure of the deed of trust lien; hence this appeal.

We have reached the conclusion that the claim of homestead was established as a matter of law.

In 1921 Mrs. Seidemann purchased lot 13 in block 48. A house, garage, and other improvements were on it. In June, 1924, the Seidemanns began to use said lot 13 as their home. Afterwards they found that lot 12 on one side and lot 14 on the other side of lot 13 were low and did not drain, causing water to stand and become stagnant, and causing weeds and vegetation to grow, cutting off the breeze, and rendering such premises unsanitary. In October, 1924, Mrs. Seidemann purchased lots 12 and 14, and appellants caused them to be filled to a level with lot 13, sodded them with Bermuda grass, and the three contiguous lots thereafter formed one big yard, without any line of demarcation between them. Pecan and fruit trees were thereafter planted on all the lots. A cement sidewalk in front of lot 13 was extended along lots 12 and 14, and later a curb was built, and the street paving was paid for by appellants in front of the three lots. The three lots thus improved have constituted one continuous and contiguous well-kept yard, and appellants have used them in connection with their home, living in the house on lot 13, using one adjacent lot to back their automobile over, and for a resting place under the shade of the trees, and using the lawn on the other lot for playing croquet, and stringing lights over the entire yard for lawn parties; using them for beautification of the home and for pecan and fruit trees for family use, if they bear. The bank's employees who negotiated the loan and secured the execution of the deed of trust testified that they knew that the Seidemanns had occupied, and were occupying, the house as their home; that, upon the lots being offered as security, they drove by the premises and saw the one, continuous, and contiguous well-kept yard, the pecan and fruit trees thereon; and further testified that there was no line of demarcation between the lots; and that they did not know what uses appellants made of the premises. The uses of the lots above detailed were open and visible to everyone, and the testimony of such uses of the lots in connection with the house and other improvements from October, 1924, to the date of the execution of the deed of trust, and even since, was not contradicted in any manner. The deed of trust was executed to secure a pre-existing debt of Adolph Seidemann; the employees of the bank telling him that the bank examiners were requiring them to secure the debt, which they refused to extend payment of unless the security was given. The deed of trust contained the statement that the lots were not appellants' homestead, and were not used in connection with their homestead, and the deed of trust designated lot 13 as homestead. The agents of the bank testified that Adolph Seidemann also told them that the lots were not homestead; and Seidemann himself drew the deed of trust.

The law is settled that lots used in connection with the urban home for mere convenience to the enjoyment of the homestead, or for pleasure, or for beautification or ornamentation of the same, or for garden or orchard purposes used in connection with the home, are entitled to homestead protection, if it is a fact that they have been so used. Arto v. Maydole, 54 Tex. 244; Medlenka v. Downing, 59 Tex. 32; Achilles v. Willis, 81 Tex. 169, 16 S. W. 746; Anderson v. Sessions, 93 Tex. 279, 51 S. W. 874, 55 S. W. 1133, 77 Am. St. Rep. 873. The above-detailed facts are undisputed, and show that from 1924 until the execution of the deed of trust the lots in suit were so used by appellants. Since this is true, the lots were a part of the homestead, and no valid lien could be given on them.

The law is also settled that, where property is actually occupied by the husband and wife for the purpose of a home so as to make it homestead in law, no disclaimer or renunciation thereof and no representation to the contrary, however made, will be permitted to change the homestead character of the property nor work an estoppel to assert the homestead claim.

Nunn in his work, Texas Homestead and Other Exemptions, § 35, p. 94, succinctly stated the...