Tyler v. Thomas

• Decision Date: 31 May 1927
• Docket Number: (No. 8992.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 297 S.W. 609
• Parties: TYLER et al. v. THOMAS et al.
• Court: Texas Court of Appeals

Page 609

297 S.W. 609

TYLER et al. v. THOMAS et al.

(No. 8992.)^*

Court of Civil Appeals of Texas. Galveston.

May 31, 1927.

Rehearing Denied July 6, 1927.

Appeal from District Court, Harris County; Ewing Boyd, Judge.

Suit by Mrs. Ida Mae Tyler and husband against Scott C. Thomas and another. From a part of the judgment rendered in favor of defendants, plaintiffs appeal. Reversed and remanded.

Gill, Jones & Tyler, of Houston, and F. A. Williams, of Galveston, for appellants.

W. P. Hamblen, of Houston, for appellees.

LANE, J.

This suit was brought by Mrs. Ida Mae Tyler, joined pro forma by her husband, Lee Tyler, against Scott C. Thomas and A. M. Foute. The petition is in the ordinary form of petitions in suits of trespass to try title, and by it plaintiffs seek to recover from Scott Thomas title and possession of lot 8, in block 4, in subdivision of 10-acre lot No. 7 of the J. S. Holman survey, on south side of Buffalo Bayou, in the city of Houston, in Harris county, Tex., together with all improvements thereon. Recovery is also sought against both Thomas and A. M. Foute for certain funds in the hands of Foute, collected as rents from the property involved in the suit.

A. M. Foute filed no answer. Scott C. Thomas answered only by plea of general denial and not guilty.

It seems to be agreed by all parties that the building on the lot involved in the suit was a building under one roof; that it had but two entrances from the outside, one from the front, and the other from the rear; that it was divided into four apartments. It is shown by the undisputed evidence that at the time of the death of Mrs. Bessie L. Thomas, to wit, on the 30th day of September, 1925, she was the wife of Scott C. Thomas, as she had been for a number of years prior thereto; that at the time of the death of Mrs. Bessie L. Thomas she owned the property in question in her own separate right; that from July, 1922, up to the 12 days before her death, she and her husband, Scott C. Thomas, occupied one of the apartments in the building as their home; that on or about the 18th day of September, 1925, 12 days before her death, Mrs. Thomas left her home and went to the home of her daughter, Mrs. Ida Mae Tyler, and in a few days thereafter, about 5 or 6 days, filed suit for a divorce against Scott C. Thomas, and almost immediately went to Kerrville, and died on the 30th day of September, 1925, about 5 or 6 days after filing said suit; that Scott Thomas never left the building, but remained there at all times. It was shown by the undisputed evidence that, during the occupancy of one of said apartments by Mrs. Thomas and her husband, they rented the others to three several tenants, who occupied them with their respective families. Mrs. Tyler is the only child of Mrs. Thomas, and Mrs. Thomas left a will, which was duly probated, by which she bequeathed the property in question to Mrs. Tyler.

Only two witnesses testified, the plaintiff, Mrs. Tyler, and defendant Foute, both as witnesses for the plaintiffs.

Mrs. Tyler testified that her mother, Mrs. Thomas, moved into the apartment house in July, 1922, and lived in it up to 12 days prior to her death; that she had been ill for some time before she died; that she went to Kerrville for her health, and died there; that her mother was the wife of Thomas in name only; that she married Thomas, and that from July, 1922, they lived in the apartment house together up to 12 days before her death.

Foute testified that Mrs. and Mr. Thomas lived in one of the apartments in the building in question; that the building was on one lot of ground; that Mrs. Thomas lived there all the time he was there, but not up to the day of her death; that Mr. Thomas continued to live in the building up to, and continually thereafter up to, the date on which he testified.

A jury was impaneled and sworn to try the cause, but after the plaintiffs had introduced their evidence, showing the facts above stated, and rested, the court discharged the jury and rendered judgment for Mrs. Ida Mae Tyler for the title to the property, but denying her judgment for the possession of the same, or for rents, and decreed that she was not entitled to recover anything against Scott C. Thomas and A. M. Foute for rents, and that Scott C. Thomas was the owner of said rents. It was also adjudged that Scott C. Thomas should be vested with the possession of the property "during his lifetime, or so long as he may elect to use or occupy said property as his homestead."

From so much of the judgment as is in favor of Scott C. Thomas and A. M. Foute, Mrs. Tyler and husband have appealed.

By appellants' eleventh proposition, which we shall first consider, they contend that, as the building on the lot sued for consisted of four apartments and was appurtenant to the lot, the separate property of Mrs. Bessie L. Thomas at the time of her death, by whose will the title to the same passed to Mrs. Ida Mae Tyler, and as one, and only one, of said apartments was ever occupied by Thomas and his deceased wife, Bessie L. Thomas, as their home, the other three being rented to and occupied by three several tenants and their respective families, Scott Thomas, the surviving husband, was in no event entitled to a homestead right in or to any part of the building after the death of his wife, as against Mrs. Tyler, except the one apartment which was occupied by him and his wife, prior to her death, as their home, and therefore the court erred in not so holding.

The contention of appellants is settled adversely to them by the decision in the case of Forsgard v. Ford, 87 Tex. 185, 27 S. W. 57, 25 L. R. A. 155. The decision was written by Judge Brown, of our Supreme Court, wherein it is said:

"The question presented is: Can a part of a house standing on a lot that is homestead be subjected to forced sale under our Constitution and laws? The house upon lot 5 was a fixture, within the meaning of the law, and as such was a part of the land itself. A sale of the land would carry the house and every part of it. Hutchins v. Masterson, 46 Tex. 555, 26 Am. Rep. 286; Sinker, Davis & Co. v. Comparet, 62 Tex. 476. The house, being attached to and a part of the realty, could not be seized and sold separately from the land. Willis v. Morris, 66 Tex. 628, 1 S. W. 799, 59 Am. Rep. 634. The Constitution of this state (article 16, § 51) defines an urban homestead in this language: `The homestead in a city, town or village, shall consist of lot, or lots, not to exceed in value $5,000 at the time of their designation as a homestead, without reference to the value of any improvements thereon: Provided, that the same shall be used for the purposes of a home, or as a place to exercise the calling or business of the head of a family: Provided, also, that any temporary renting of the homestead shall not change the character of the same, when no other homestead has been acquired.' "By this provision of the Constitution the exemption is placed upon the lots, and not upon the improvements. This is emphasized by the further provision that the value of improvements shall not be included in determining the right. The use of the lot or lots impresses upon the land the homestead character. Whatever is so attached to the land as to become a part of it must partake of the character of the land, and, if the land is subject to sale, the improvements upon it will be subject; if, however, the land cannot be sold, neither can the structures built upon it as permanent buildings, adapted to its use, and intended by the owner for such purposes.

"It would not be...