Torres v. Cuneo

• Court: Texas Court of Appeals
• Writing for the Court: James
• Citation: Torres v. Cuneo, 53 S.W. 828 (Tex. App. 1899)
• Decision Date: 25 October 1899
• Parties: TORRES et al. v. CUNEO.<SMALL><SUP>1</SUP></SMALL>

53 S.W. 828

TORRES et al. v. CUNEO.¹

Court of Civil Appeals of Texas.

October 25, 1899.

Appeal from district court, Bexar county; J. L. Camp, Judge.

Suit by C. Cuneo against Cesario Torres and others. There was a decree for plaintiff, and defendants appeal. Affirmed.

The following is the plat referred to in the opinion:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Thos. O. Murphy and Thos. Haynes, for appellants. Upson & Newton and T. J. Newton, for appellee.

JAMES, C. J.

The case involves the defense of homestead, in a suit to foreclose a lien. The district judge rendered judgment for the plaintiff, upon the ground that the property claimed to have been a part of defendants' homestead at the date of the deed of trust had been abandoned, as to homestead uses. We find as follows the facts we deem material in respect to the said judgment:

Conclusions of Fact.

All the property shown upon the annexed plat was originally defendants' homestead. Defendants, prior to the date of the deed of trust, had formed the intention of permanently devoting to other than homestead use (to wit, the purpose of renting) those parts of the property upon which the lien was given, to wit, lot 5, the N. ½ of lot 3, and that designated upon the plat as "Lot 2." Acting upon his purpose and intention, defendants constructed upon each of said parcels a house, with convenient outhouse, suitable to rent for dwelling purposes. These houses were practically completed on September 20, 1890, when the deed of trust upon said lots and parts of lots was given, but had not been rented, nor had any fences then been erected separating said parcels of ground from defendants' dwelling place on lot No. 1. They were, however, immediately afterwards by defendants separated from the dwelling place by the fences shown on the plat, and rented out as a permanent thing, according to the purpose which led to their construction.

Conclusion of Law.

Our view of the result of the facts is that the property mortgaged was at the time abandoned, as to the homestead use. The intention to segregate from the homestead a part thereof, and to devote same to other than homestead use, is not of itself an abandonment. The intention must be acted upon. Here it was acted upon, to the extent of erecting thereon permanent tenement houses and necessary appurtenances thereto. We think it will be admitted that, under these circumstances, so much of the ground as was occupied by the houses was effectually and permanently removed from the homestead use. After the erection of these houses (that is, when the mortgage was made), no part of the lots mortgaged seems to have been in use in connection with the homestead. It is true, such parts had not been fenced off, but fences are not indispensable to an abandonment. The positions of the houses with reference to lot No. 1...