Wallingford v. Bowen
| Decision Date | 05 April 1937 |
| Docket Number | No. 4735.,4735. |
| Citation | 104 S.W.2d 188 |
| Parties | WALLINGFORD v. BOWEN et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Lipscomb County; W. R. Ewing, Judge.
Suit by the Follett National Bank against Sam P. Wallingford and others, wherein named defendant filed an answer praying foreclosure of a judgment lien, and the trial proceeded, after settlement of plaintiff's claim and dismissal of the cause as to such claim, upon issues made between named defendant and defendant Hazel Bowen and husband. From an adverse judgment, named defendant appeals.
Reversed and rendered.
Sewell & Sewell, of Follett, for appellant.
John Payne, of Perryton, and E. C. Gray, of Higgins, for appellees.
This suit was originally instituted in the district court of Lipscomb county by Follett National Bank upon a promissory note and to foreclose a lien upon 200 acres of land, being a part of section No. 1066 in Block No. 43, located in that county. The appellant, Sam P. Wallingford, was made a party defendant on the ground that he was asserting some kind of a claim to the land or a lien thereon, and he answered by setting up an abstract of judgment lien, issued and properly filed and indexed, upon a judgment which he held against the appellee, Hazel Bowen, in the sum of $1,900, with interest and costs of suit, and praying for foreclosure. Before the trial, a settlement was made with the bank, the cause dismissed as to its claim, and the trial proceeded upon the issues made between appellant, Wallingford, and appellee Hazel Bowen. Walter Bowen, husband of Hazel Bowen, was made a party pro forma, and the children of Hazel Bowen by a former marriage to Will T. Haines, now deceased, were made parties to the suit, but, as the controversy involves only the community half interest of Hazel Bowen in the land, it will not be necessary further to notice them.
Appellees, Hazel Bowen and her husband, Walter Bowen, answered by setting up a homestead claim in the 200 acres, alleging that it was community property of appellee Hazel Bowen, and her former husband, Will T. Haines, and, after his death, had been set apart as the homestead of Hazel Bowen and her children by the probate court of Lipscomb county. They alleged that it had been used and occupied by them as a homestead and that they had never permanently abandoned it as such.
This plea was controverted by appellant and the allegation further made by him that, if the land had ever constituted the homestead of appellee Hazel Bowen, it had long since been abandoned as such, and this is the only issue presented for determination in this appeal.
The 200-acre tract was a portion of a larger tract of land that had been acquired by appellee Hazel Bowen, and her former husband, Will T. Haines, who died some time prior to 1922, and was occupied by them and their family as a homestead until his death. After the death of her husband, the probate court, in 1922, set apart this 200 acres as the homestead of the surviving wife and children and they continued to occupy it until some time in 1929. During this time she married a man by the name of Moseley who resided with the family on the land during the time he lived with appellee. Prior to 1929 appellee and Moseley separated, and she, in order to avail the children of a better school and better to provide a living for the family, moved to Perryton in Ochiltree county, where she ran a restaurant and took in boarders. During the time she ran a boarding house, she rented and lived in the house of appellee Walter Bowen, who also lived there with his small son. In 1933, in the district court of Lipscomb county, she procured a divorce from Moseley, and in 1934 she married appellee Bowen, after which she and her children continued to live at Perryton, in Ochiltree county, in the house with Bowen and his twelve-year old son by a former marriage, and they were still living there when the suit was tried. Bowen had owned the Perryton property since about 1931, and he and his small son had occupied it continuously from that time. Before his marriage to appellee Hazel Bowen, he had farmed the 200-acre tract as a tenant for two years, but did not live on the land, and his testimony was that his property at Perryton was incumbered and he figured he could lose it and, if he should, he would be very much interested in moving back to the farm. Appellees had sold the house and outbuildings that were located on the farm and had pulled out the casing in the well. No attempt had been made to...
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