Stone v. Phillips

• Decision Date: 12 April 1943
• Docket Number: No. 5541.,5541.
• Citation: 171 S.W.2d 156
• Parties: STONE et al. v. PHILLIPS.
• Court: Texas Court of Appeals

171 S.W.2d 156

STONE et al. v. PHILLIPS.

No. 5541.

Court of Civil Appeals of Texas. Amarillo.

April 12, 1943.

Rehearing Denied May 10, 1943.

Appeal from District Court, Runnels County; A. S. Mauzey, Judge.

Action by John R. Phillips against Mary Phillips Stone and husband on a note and to foreclose a lien under a deed of trust, wherein Donald Phillips intervened. On motion of both parties at the close of the evidence for a peremptory instruction, the trial court overruled defendants' motion, dismissed the jury and entered judgment for plaintiff, and defendants appealed to the Court of Civil Appeals of the Third Supreme Judicial District at Austin and the case was transferred to the Court of Civil Appeals of Texas of the Seventh Supreme Judicial District at Amarillo.

Affirmed.

Baker & Baker and R. E. Murphey, all of Coleman, for appellants.

Shepherd & Patteson, of Ballinger, and E. M. Critz, of Coleman, for appellee.

PITTS, Chief Justice.

The record shows that on October 4, 1926, appellant, Mary Phillips Stone, then a feme sole whose maiden name was Mary Esther Phillips, executed, together with her mother, Katherine Phillips, a renewal note in the sum of $632.91 with interest, payable to J. M. Cordell in twenty-four monthly installments at $25 per month on the 4th day of each month beginning November 4, 1926, with the last installment of $32.91 due and payable on November 4, 1928; that said note was secured by a deed of trust executed by the same parties on all of Lot 6 in Block 93 of the First Railroad Addition to the town of Ballinger, Runnels County, Texas; that on April 21, 1928 appellant, Mary Esther Phillips, was married to Aaron A. Stone; that on July 14, 1930, the note and deed of trust were transferred and assigned to appellee, John Phillips, by J. M. Cordell; that Katherine Phillips died intestate on May 7, 1941; that thereafter appellee sued appellants, Mary Phillips Stone and her husband, Aaron Stone, in the District Court of Runnels County for amount of the note with interest and attorneys' fees and to foreclose the lien on the land described in the deed of trust.

Donald Phillips intervened in the case claiming certain improvements placed by him on the land above described for which he obtained judgment in the trial court, from which judgment no appeal was perfected and about which no complaint is made by appellants or appellee.

Appellants answered to the effect that the final payment on said note was more than fourteen years past due and that same, together with the deed of trust, were therefore barred by the statute of limitation, in response to which appellee filed a denial and alleged that Mary Phillips Stone was a resident and citizen of Texas at the time the note and deed were executed and that she was a resident and citizen of Texas continuously until the date of the trial but that she had been continuously out of the State since appellee's cause of action had accrued and thus invoked a statutory exception to the plea of limitation.

At the close of the evidence both appellants and appellee moved the trial court for a peremptory instruction, appellee on the grounds that the undisputed testimony showed appellant, Mary Phillips Stone, owed the amount of the note and that the debt and lien were not barred by the statute of limitation, and appellants on the ground that the note and lien were barred by the statute of limitation. The trial court overruled appellants' motion, dismissed the jury and entered judgment for appellee for the sum of $1,450.73, the amount of the note with interest and attorneys' fees, and a foreclosure of the deed of trust lien, from which appellants perfected their appeal to the Court of Civil Appeals of the Third Supreme Judicial District at Austin, and the same was transferred to this Court by the Supreme Court of Texas.

It was agreed in the trial court by the parties that the note sued on was lost but that appellee owned the note with an unpaid balance of $1,450.73 as principal, interest and attorneys' fees.

Appellants state that the sole question to be decided on this appeal is the question of the statute of limitation on the note and deed of trust lien based on the question of residence or domicile of the appellant, Mary Phillips Stone, with which statement appellee agrees. Appellants contend in their brief only that Mary Phillips Stone, nee Mary Esther Phillips, was a non-resident of Texas when the note and deed of trust were executed and for a period of some thirteen years thereafter, while appellee contends that Mary Phillips Stone, nee Mary Esther Phillips, was a citizen of Texas and claimed Texas as her home from the date of her birth on April 15, 1886, up to and including the date of the trial of the case in the trial court on June 3, 1942, but that she was absent from the State of Texas during the entire period of limitation claimed except for about one year, immediately preceding the trial of the case.

It is a well settled rule of law that a non-resident of the State of Texas does not come within the exception of a statutory limitation plea and that limitation may run in his favor. 28 Tex.Jur. 234, par 135, and Wilson v. Daggett et al., 88 Tex. 375, 31 S.W. 618, 53 Am.St.Rep. 766.

Appellant, Mary Phillips Stone, testified on direct examination, among other things, that she lived in Brownwood, Texas from 1918 to 1924; that prior to that time she lived at Ballinger, Runnels County, Texas, where she had served as district clerk for 8 years; that on July 30, 1924, she left Texas for Washington, D. C., where she lived until February, 1933, when she moved to Maryland, near Washington, but that she never did abandon her home in Texas and came back to Texas on May 9, 1941, to attend the funeral of her mother, and the record shows she has lived in Texas since that date.

On cross-examination appellant, Mary Phillips Stone, testified as follows:

"Q. You said that you had never abandoned your home in Texas? A. No, sir.

"Q. Then you did testify to that? A. I never abandoned it.

"Q. You mean to tell the jury that you considered yourself a citizen of the State of Texas all the time? A. Absolutely, which can be proven.

"Q. Now, during the time you were in Washington you claimed your home as being in Texas? A. Absolutely.

"Q. You claimed citizenship in the State of Texas? A. Absolutely.

"Q. You never claimed your citizenship was in Maryland, or Washington? A. No, sir.

"Q. You claimed the right to vote if you had been here? A. Absolutely.

"Q. If you had been here you would have voted. Is that right? A. I voted here when I was in Brownwood.

"Q. I am sure you did. And, you would have voted here while you were living in Washington if you had happened to be here on election day? A. Yes, sir.

"Q. You were temporarily in Washington, and temporarily in Maryland all that time you were gone? A. I guess that is what you would call it.

"Q. You were born in Texas, I guess? At Ballinger? A. No, sir, in Kaufman County.

"Q. About how old were you when you moved to Ballinger? A. I was born in 1886, April 15th, and we moved to Ballinger in 1905 on Thanksgiving day.

"Q. And you lived here until you went to Brownwood temporarily in 1920? A. 1918.

"Q. This was your home from 1905 until 1918; your real home? A. I personally resided here.

"Q. And this is really your home until now, for that matter? A. Yes, sir.

"Q. You resided here and had your home here until 1918? A. Yes, sir.

"Q. And in 1918 you went to Brownwood? A. Stayed there until 1924.

"Q. You lived in Brownwood about six years but this was still your home here in Ballinger? A. Yes.

"Q. And from 1924 practically until sometime this year you were actually residing practically all the time in Washington and Maryland, but this was still your home? A. I came here a year ago and have been here a year; I have been here a year May 9th.

"Q. And from 1924 until May of last year you were temporarily in Washington working there; Washington and then Maryland but this was still your home? A. Yes, sir.

"Q. And you considered yourself a citizen of Texas all that time? A. Yes, sir.

"Q. And still do? A. Yes, sir.

"Q. You do that notwithstanding your marriage? A. I married in Virginia.

"Q. Where is your husband living now? A. In Maryland.

"Q. And works in Washington? A. Yes, sir; yes, he works in Washington."

The record discloses that appellant, Mary Phillips Stone, testified that she visited her mother in Texas about four years before her death.

Appellants contend that in spite of her testimony Mary Phillips Stone was a resident of Washington, D. C. long before her marriage in 1928 and after her marriage she resided in Washington, D. C. until 1933 and in the state of Maryland after 1933; that the domicile of the husband controls the domicile of the wife; that the husband has the right to establish the residence of the family and that the limitation on the note and deed of trust began to run on November 4, 1928, the date of maturity, and the note and deed were therefore barred by limitation by the date the suit was filed in 1942.

The record discloses that Aaron A. Stone, husband of Mary Phillips Stone, lived in Maryland and worked in Washington at the time of the trial of the case in the trial court but the record does not disclose what place Aaron A. Stone claimed as his residence or place of domicile at any time during his marriage to Mary Phillips Stone, nor that he designated any place as the family residence.

The intention of a person has much to do with his legal residence or domicile.

Webster's New International Dictionary defines "domicile" in law as a "residence at a particular place accompanied with an intention to remain there for an unlimited time. A man can have but one domicile for one and the same purpose at any one time, though he may have numerous places of residence."

The New Century Dictionary defines the word "domicile" in law as "the place where one has a home or permanent residence,...