Tracy v. Harbin

• Decision Date: 28 October 1905
• Citation: Tracy v. Harbin, 89 S.W. 999 (Tex. App. 1905)
• Parties: TRACY et al. v. HARBIN et al.
• Court: Texas Court of Appeals

89 S.W. 999

TRACY et al. v. HARBIN et al.

Court of Civil Appeals of Texas.

October 28, 1905.

Appeal from District Court, Eastland County; J. J. Butts, Special Judge.

Suit by A. W. Harbin and others against N. K. Tracy and others. From a decree in favor of plaintiffs, defendants appeal. Reversed and rendered.

Earl Conner, for appellants. J. R. Stubblefield, for appellees.

SPEER, J.

This was an injunction suit instituted by the appellees against appellants to restrain the sale upon execution of a quarter section of land situated in Eastland county, alleged to be the homestead of appellee A. W. Harbin. Upon a finding by the trial judge in favor of the homestead exemption, the temporary injunction was made permanent and appellants have brought the case before us for review.

We construe the instrument of writing, under which appellee claims his homestead interest, to be a conveyance in fee simple with condition subsequent, and therefore ample support for his homestead claim. But if it were not, his equitable interest would undoubtedly be sufficient to support such a claim, title to the fee in such case not being absolutely essential. Dotson v. Barnett, 16 Tex. Civ. App. 258, 41 S. W. 99; Smith v. Chenault, 48 Tex. 455; Silverman v. Landrum (Tex. Civ. App.) 56 S. W. 107; Swearingen v. Bassett, 65 Tex. 267; Speer, Law of Married Women, § 252. The seventh assignment of error, complaining that appellee presents no title sufficient to support the homestead claim, is therefore overruled.

The eighth assignment of error insists that the facts show an abandonment of the homestead by appellee prior to the levy of appellants' execution, and complains that the court therefore erred in perpetuating the injunction forbidding its sale. The statement from appellants' brief, which is in no manner controverted by appellees, requires us to sustain this assignment. Appellee A. W. Harbin lived on the land in controversy with one or both of his parents from 1888 until 1901. He married in April, 1896, by which union he had four living children on November 10, 1901. During the year 1901, he learned of the opening up for settlement of the lands of the United States in Oklahoma Territory. He made three trips to the territory, and on July 11, 1901, drew claim No. 1000. He employed the services of a land agent in securing a location and on August 14, 1901, made a homestead application and affidavit for 160 acres of land in Kiowa county, Oklahoma Territory, which land was awarded to him by the United States. He moved his family and most of his household effects from the land in controversy on November 10, 1901, and onto the 160 acres of land in the territory. He made substantial improvements on the Kiowa county farm, fencing it, digging a well, constructing a house, erecting a tent, and plowing some of the land. He purchased a team and resided there until May, 1902, at which time he relinquished his claim to the government in favor of another for a consideration of $1,750. Appellee Harbin himself testified: "I had read the papers about the opening of the country, and saw that I had an opportunity of securing some land up there, and that is why I went. I came back to Eastland county a third time, and then again returned with my family to locate on the place in the territory. I abandoned the place in the territory about May 5, 1902. The reason I came back was that at the time my father was old and feeble, and did not want to live there, being dissatisfied, and wanted me to bring him back, and the place in Eastland county was the only place I had to bring him to. When I left Eastland county, I left voluntarily. I was not run off, nor told to go. After I got to the territory, it was my intention to acquire title to the land that was awarded to me. I had read the United States laws and knew what was necessary. I knew that it was necessary for me to cultivate, improve, and reside on the land 14 months, when I could give the government $1.25 per acre and acquire title. I knew that I had to...