Stevenson v. Wilson

• Decision Date: 14 April 1939
• Docket Number: No. 1897.,1897.
• Citation: 130 S.W.2d 317
• Parties: STEVENSON et al. v. WILSON.
• Court: Texas Court of Appeals

Page 317

130 S.W.2d 317

STEVENSON et al. v. WILSON.

No. 1897.

Court of Civil Appeals of Texas. Eastland.

April 14, 1939.

Rehearing Denied June 23, 1939.

Appeal from District Court, Nolan County; M. S. Long, Judge.

Suit by W. L. Wilson against J. McAllister Stevenson and others to enjoin the sale of the plaintiff's undivided interest in certain lands under an execution based on a judgment obtained by the named defendant against the plaintiff, on ground that it was the homestead of the plaintiff. From a judgment in favor of the plaintiff, the defendants appeal.

Judgment affirmed.

Davidson & McMahon, of Abilene, and Walter Carter, of Sweetwater, for appellants.

Anderson & Dickson, of Sweetwater, for appellee.

GRISSOM, Justice.

This suit was instituted by W. L. Wilson to enjoin the sale of Wilson's undivided 1/7th interest in 468 acres of land in Hill County, under an execution based on a judgment obtained by J. McAllister Stevenson against Wilson, it being contended the land constituted the homestead of Wilson and his wife. Plaintiff's interest in the land was devised to him by the will of his father, who died March 16, 1936. The judgment was obtained prior to that time. On September 7, 1937, Stevenson caused the execution to be issued and the Sheriff of Hill County to levy on said land on October 8, 1937.

At the close of the testimony the court overruled the defendants' motion for an instructed verdict and submitted the cause to the jury on the following special issues:

"No. 1. Do you find from a preponderance of the evidence that it has been the intention of W. L. Wilson at all times since his father's death to make his share of his father's estate his homestead? Answer `Yes' or `No.'

"No. 2. Do you find from a preponderance of the evidence that prior to October 8, 1937, W. L. Wilson made improvements on any of the land in question with his own funds for the purpose of using such as his home? Answer `Yes' or `No.'

The court gave the following definition: "By `preponderance of the evidence' as used in this charge is meant the greater weight of the credible testimony."

The jury answered each of said special issues "Yes." The court entered judgment declaring the land in controversy the homestead of the plaintiff and enjoining Stevenson and the Sheriff from selling it, from which judgment the defendants have appealed.

Defendants, by their first proposition, assert that the testimony was insufficient, as a matter of law, to raise the homestead issue, and, therefore, the court erred in overruling defendants' motion for an instructed verdict. The evidence shows that Wilson was by the will of his father devised an undivided 1/7th interest in 468 acres of land, upon which Stevenson's writ of execution was levied, and that plaintiff and his brother are the executors of his father's estate. There was evidence to the effect that prior to his father's death Wilson had talked to his father with reference to making said land his homestead and had asserted his intention to do so; that thereafter Wilson had continuously intended to make said land his homestead, and had made statements to that effect to several persons who testified upon the trial of the case. Although the land had not been partitioned at the time of the trial there was a tentative agreement among the owners of said 468 acres of land that Wilson was, upon partition, to have a particular 60 acre tract. There was evidence that prior to the time the execution was levied on plaintiff's interest in the land he had made valuable improvements on the tract for the purpose of preparing it for use as his home; that prior to the levy, and prior to plaintiff's knowledge of any intention to attempt to sell said property in satisfaction of the judgment against him, plaintiff's wife and daughter moved into a part of a house on the 468 acre tract of land, which house was also occupied by a tenant; that Mrs. Wilson had a cow and chickens at the place where she occupied the room and that she had furniture and household goods moved there sufficient for the use of herself and daughter; that plaintiff had repaired the houses, barns and fences on the 468 acre tract of land at the expense of the estate; that he had built a new floor in the house on the 60 acre tract of land, where he testified he expected to make his home, which latter repairs were made at his own expense; and for the purpose of using it as his home; that while all but the 60 acre tract was rented to tenants on the customary "1/3 and 1/4", this particular 60 acres was being cultivated by a person employed by plaintiff to do the work for an agreed price; that plaintiff owned no other real estate; that prior to the levy of the execution, plaintiff had taken control and possession of the 60 acre tract claimed by him as a homestead, and plaintiff's wife and daughter had actually moved into a house onto the 468 acre tract; that the house which plaintiff intended to occupy had been leased to a tenant by plaintiff's father and that said lease did not expire until January 1, 1938; that at the time of this trial, on January 5, 1938, said tenant in the house on the 60 acre tract, had just moved, or was about to move, and had not moved earlier because said tenant was not able sooner to obtain possession of other premises which he had rented; that plaintiff and his family intended to make the 60 acre tract their home as soon as the house was vacated by the tenant in possession under the rental contract from plaintiff's deceased father.

Plaintiff testified, in part, as follows:

"Q. Where does your wife, Mrs. Stella Wilson, live at this time? A. In Hill County.

"Q. On what property does she live? A. On the Wilson property down there.

"Q. On the property you have described here in your petition? A. Yes sir."

He testified that he had been on the property in question about nine times since his father's death.

"Q. What was your purpose for going there? A. For looking after the property and making repairs on it.

"Q. Tell the jury what repairs you have made? A. Well, one house on the place I put a floor in it and another house I screened the house and fixed it up and another I put windows in it but the house I put the floor in was for my individual use.

"Q. I will ask you then, the house you put the floor in, why did you put it in for? A. For my own personal use.

"Q. Did you put it there to enhance the rental value or for your wife and child to occupy? A. For my wife and child to occupy. * * *

"Q. You made those improvements with the idea of living in it? A. Yes sir. * * *

"Q. Had you made any improvements before you knew they were attempting to sell it? A. All of these improvements were made before.

"Q. I believe you testified you fixed the fences, barns and house? A. Yes sir, I did. * * *

"Q. But you put the floor in the other house because you were going to live there, —you were going there to live? A. Yes sir. * * *

"Q. You paid for it? A. Yes sir. * * *

"Q. Is it rented? A. All except this that I have down there as a homestead.

"Q. All but the house? A. The house and the land.

"Q. The sixty acres that Engledow— approximately sixty acres? A. Yes sir. * * *

"Q. You allege in your petition, Mr. Wilson, that Mrs. Wilson and your daughter live on this place? A. That is right.

"Q. They have actual physical occupancy of it? A. Yes sir. * * *

"Q. But they were renting this place you put the floor in, that you intend to make your home? A. I intend to make it my home when this house was vacant. At that time, at the time—at that time this house was occupied they was living in it and we repaired the floor with the intention for me making that my home.

"Q. When did these people get out of your house, in the fall of 1937? A. In the fall of 1937—when did they get out?

"Q. Yes sir. A. They haven't moved unless they moved in the last two or three days. * * *

"Q. For eighteen months, ever since the debts have been paid, you have been in position where you could have occupied that place? A. No.

"Q. Why not? A. Because the place was rented before my father's death.

"Q. It is rented for 1938 now, isn't it? A. Not the property that I claim down there. * * *

"Q. That land has not been partitioned off to you yet? A. No.

"Q. The other heirs haven't quit claimed it to you yet? A. No.

"Q. And you don't know whether you will wind up with that 60 or some other 60? A. No."

The plaintiff's wife testified in part, as follows:

"Q. Has Mr. Wilson discussed with you what he desires to do with that land? A. Yes sir.

"Q. What? A. That is to be our home.

"Q. Do you know of your own knowledge whether some of that has been partitioned off orally for your home? A. Well, in a way, yes, some of it.

"Q. How many acres? A. Sixty, I believe, or sixty two, right at sixty.

"Q. You have been living down there some? A. Yes.

"Q. Tell the jury how many times you have been there since the elderly Mr. Wilson's death. A. Well, I stayed down there last summer quite awhile, and I have made at least a dozen trips.

"Q. Do you know of any improvements your husband made on any of the property there? A. Yes.

"Q. Which property? A. On the place for our home.

"Q. Did he—do you know who paid for that, whether he paid for it individually or whether the estate paid for it? A. He paid for it. * * *

"Q. Do you know? A. I do know; I was with him when he paid it.

"Q. Tell the jury was it his money or the estate's money? A. It was his money.

"Q. Is it your intention to reside down there? A. Yes sir, it is.

"Q. As your home? A. Yes sir.

"Q. Have you had that intention since he came into possession of that land? A. It is our intention, and has been, to make that our home.

"Q. Tell the jury what you have done down there. A. I have a cow and some chickens; I think twenty-five hens, and I have moved a housekeeping outfit down there.

"Q. Why is it you have had a room over at Mr. Engledow's instead of living in that house? A. The family that...