Stevenson v. Wilson

• Decision Date: 09 July 1942
• Docket Number: No. 2434.,2434.
• Citation: 163 S.W.2d 1063
• Parties: STEVENSON v. WILSON et ux.
• Court: Texas Court of Appeals

163 S.W.2d 1063

STEVENSON v. WILSON et ux.

No. 2434.

Court of Civil Appeals of Texas, Waco.

July 9, 1942.

Rehearing Denied October 1, 1942.

Appeal from District Court, Hill County; J. D. Stephenson, Judge.

Suit by J. McAllister Stevenson against W. L. Wilson and wife to foreclose a judgment lien. From a judgment for defendant, plaintiff appeals.

Reversed and remanded.

Morrow & Calvert, of Hillsboro, and J. McAllister Stevenson, of Abilene, for appellant.

Jerry E. Clarke, of Hillsboro, for appellees.

RICE, Chief Justice.

This proceeding was instituted in the District Court of Hill County by J. McAllister Stevenson, as plaintiff, against W. L. Wilson and wife, seeking foreclosure of an asserted lien on the undivided interest of Wilson in certain land situate in Hill County, Texas, created by the proper filing and recording of an abstract of an unsatisfied money judgment theretofore obtained by plaintiff against defendant Wilson.

Defendants answered by plea of res adjudicata, and that the land in question was their homestead, therefore not subject to forced sale.

Trial was had to the court without the intervention of a jury; and the court, at the conclusion of the evidence, rendered judgment that plaintiff take nothing. From this judgment plaintiff has appealed.

Neither party requested the court to file his findings of fact and conclusions of law, and none were filed; nor are there any express findings of fact incorporated in the court's judgment. We therefore must assume that the court found from the evidence the facts and law to be with the defendants on all their pleaded defenses; that is, both on the defense of res adjudicata and on the question of homestead. Schulenburg Mutual Life Ins. Co. v. Huber, Tex.Civ.App., 147 S.W.2d 277; Stein v. Puig, Tex.Civ.App., 159 S.W.2d 154.

It is undisputed that plaintiff, in 1932, in the District Court of Nolan County, Texas, recovered a money judgment against defendant Wilson; and that his judgment was kept alive and was unsatisfied at the time of this trial. An abstract of said judgment was issued, filed, recorded and indexed, in all respects as required by law, in the office of the County Clerk of Hill County on the 18th day of September, 1936.

In March, 1936, defendant Wilson inherited from his father an undivided one-seventh interest in the land on which plaintiff sought to impress his lien. The Wilsons were married prior to the rendition of the money judgment, and the land in question was all the real estate owned by them. Because we deem it immaterial, we pretermit a statement of the evidence introduced by the Wilsons as to their intention and acts in reference to constituting said land their homestead.

It further appears that in September, 1937, plaintiff caused an execution to issue out of the District Court of Nolan County on his money judgment against Wilson, and on October 8, 1937, caused the same to be levied on the interest of Wilson in the land in controversy. Thereupon Wilson procured a temporary injunction to issue out of the District Court of Nolan County, prohibiting the plaintiff and the sheriff of Hill County from selling the land so levied on under said writ of execution, and the matter was set down for trial upon the merits. In the injunction suit, Wilson pleaded that he was a married man and the head of a family; that the land levied on was his homestead; and was all the real estate owned by him; that prior to his father's death, which occurred March 16, 1936, and since, he had intended to occupy the land in question as his homestead. He further pleaded repairs made by him to the improvements on the premises for the purpose of making the same his homestead, done prior to the levy of the writ of execution, and actual occupancy, at the time of the filing of the pleading, by his wife and daughter, of the land in question as their homestead.

Stevenson, defendant in the injunction suit, plaintiff here, pleaded the general denial. A jury was empanelled and in response to special issues submitted, found:

(1) That W. L. Wilson, at all times since his father's death, had the intention to make his share of his father's estate his homestead.

(2) That prior to October 8, 1937, Wilson made improvements on the land in question with his own funds for the purpose of using same as his home.

The court, in its judgment, found that W. L. Wilson was a married man; was the head of a family; that the land in question was the only land owned by him; and that the same was his homestead. Stevenson and the sheriff of Hill County were perpetually enjoined from selling, or attempting to sell, the land in question.

Stevenson's appeal of said cause is reported in Tex.Civ.App., 130 S.W.2d 317. The judgment of the trial court was affirmed, and writ of error denied by the Supreme Court.

Thereafter, in May, 1939, plaintiff Stevenson instituted this suit in the District Court of Hill County, pleading, and praying for foreclosure of, his abstract of judgment lien on the same tract of land which was adjudged to be the homestead of Wilson in the above-mentioned prior proceeding had in the District Court of Nolan County.

As a complete defense to the cause of action asserted by Stevenson in this cause, the Wilsons pleaded and made proof of the above-mentioned final judgment rendered by the District Court of Nolan County. While we are not favored with a brief for the appellees, we gather from their pleadings that it is their position that Stevenson is asserting in this cause the same cause of action he asserted in said former suit in the District Court of Nolan County, and that the fact issue of homestead vel non made by the pleadings of the parties in the Nolan County case is the same fact issue raised by the pleadings in this case. As supporting this plea of res adjudicata, we assume that the Wilsons relied upon rules of law hereinafter stated.

It is the rule that when parties have...