Weitzman v. Lee

• Decision Date: 23 April 1924
• Docket Number: (No. 2316.)
• Citation: 262 S.W. 859
• Parties: WEITZMAN et ux. v. LEE.
• Court: Texas Court of Appeals

Page 859

262 S.W. 859

WEITZMAN et ux. v. LEE.

(No. 2316.)

Court of Civil Appeals of Texas. Amarillo.

April 23, 1924.

Rehearing Denied June 4, 1924.

Appeal from District Court, Wichita County; H. R. Wilson, Judge.

Suit by Max Weitzman and wife against Homer Lee. Judgment for defendant, and plaintiffs appeal. Affirmed.

W. L. Scott and T. F. Hunter, both of Wichita Falls, and H. G. Hendricks, of Amarillo, for appellants.

Bullington, Boone & Humphrey, of Wichita Falls, for appellee.

HALL, C. J.

On the 29th day of April, 1923, the appellee, a judgment creditor of appellant Weitzman, caused an order of sale to be levied upon lot No. 7, block No. 192, in the city of Wichita Falls, and was advertising said property for sale. May 18th the appellants, Weitzman and wife, brought this suit to restrain the sale of said lot, alleging that the property was their residence and business homestead; that the lot, exclusive of the improvements, did not exceed $5,000 in value, and that they had acquired no other homestead, and that the property was exempt to them under the Constitution and laws of this state. Lot 7 is an inside lot and fronts west 70 feet upon Travis street, running back 150 feet to an alley. Upon the front or west end of said lot Weitzman had constructed a brick building which fronts 66 feet upon Travis street, running back about 115 feet. On the north side of the building there is a plank walk, 4 feet in width, between the north wall of the building and the north line of the lot, extending back east the full length of the building. The brick building was constructed for and used as a bakery and is subdivided and partitioned into an office, flour room, cooling room, machinery room, oven room, packing and shipping rooms, and a loading shed. Upon the northeast corner of the lot adjacent to the alley is a five-room residence, 40 feet square, with continuation of the plank walk running from the front of the lot and dividing the residence from the rear end of the brick building. The residence fronts south. There is an open space, about 28 by 36 feet, in the southeast corner of the lot, which is covered with concrete; 14 feet of this space being used as the front yard of the residence, the remaining 14 feet next to the south line of the lot being used as a driveway for the delivery wagons to reach the rear end and loading shed of the bakery. By this action Weitzman endeavored to restrain the sale of the entire premises, asserting his claims as business and residence homesteads to the entire lot.

The trial was to the court without a jury and resulted in a judgment restraining the sale of the residence and of that part of the property covered by the plank walk, but refused to restrain the sale of the bakery and the driveway leading from the back of the bakery building to the alley. The judgment recites that —

The court "is of the opinion that Max Weitzman, after purchasing lot No. 7, block 192, original town site of Wichita Falls, Tex., in 1919, divided said lot in such a manner as to place on said premises a business homestead and a residence homestead both separate and independent from each other, by allowing a space on the north side of said lot, approximately 4 feet in width, and also a space on the east side of the business homestead, approximately 4 feet in width, and approximately 40 feet in length, as a passageway or walk, or a common easement for the use of both the residence and of the business homestead, and after placing on the east side of said lot or rear of the same a driveway from the alley street to the business homestead of approximately 14 feet in width, to be used for convenience of his business homestead, that by said means he completely separated his business homestead from his residence homestead, which is on the rear of said lot or the east end of said lot. And the court is of the further opinion that at the time of the levy of this execution the defendants had abandoned their business homestead, and that the injunction should be granted in so far as it attempts to sell any portion of said property known as plaintiff's residence homestead, and should be denied in so far as the levy and attempt to sell the same on the part of the defendants of the business homestead, which includes the brick building 64 feet, 4 inches wide, and 115 feet long, facing on Travis street, together with the ground upon which said building is situated, together with the easement of ingress and egress over the space 14 feet wide, in the rear of said building to the alley street running through said block, said easement being 35 feet in length and 14 feet in width, together with the easement on the part of said parties to use the 4-foot space running from Travis street on the north side of said brick building down to the northeast corner of said brick building, and thence on the east side of said brick building to the easement of the driveway into said brick building."

A lease was introduced in evidence dated July 29, 1921, executed by the appellants to R. L. Nafziger, which conveyed to the latter all of lot No. 7, with the buildings thereon, as above described, "for a term of one year, beginning the first day of August, 1921, and ending the first day of August, 1922, for the sum of $4,200.00." The lease further recites, in part:

"At the expiration of the term hereby created, unless lessee elects to maintain said term under his option as hereinafter provided, or if default be made in the payment of the rent after the same is due, etc., * * * the lessors, or their agents, shall have the right to enter and take possession of the leased premises and the lessee agrees to deliver the same without the process of law, and this lease, at the option of the lessor, shall terminate. * * * This lease, at its expiration, or the expiration of any renewal thereof, at the option of the lessee, will be extended for one year at the same term rent and under the same conditions, unless the lessee gives at least 120 days' notice before the expiration of said lease of his intention not to renew the said lease and notice to be served upon or mailed by registered mail to lessors to their last known address. Said option for one-year periods to continue up to and including the year 1931, it being agreed between the lessors and the lessee that the lessee has the privilege of renewing this lease at the expiration of each annual period for another annual period, as above provided, and that said option is for any number of such periods, not to exceed ten, and up to and including the year 1931. It is further understood and agreed by and between the lessors and the lessee or his assigns, and as a part of the consideration for this lease, and the payment of the moneys herein specified, that the lessors will sell to the lessee, his assigns or the person he may designate, all of said real estate, buildings, plant and fixtures, free and clear of all incumbrances, guaranteeing good title in lessee or his assigns, executing all papers required by lessee or his assigns, at any time during the continuation of this lease or the renewal thereof, for the sum of $45,000.00, upon notice to lessors of lessee's or his assigns' election to purchase under this option, and in the event the lessors are absent from the city of Wichita Falls, then a registered letter addressed to their last known address, signed by lessee, or his assigns, shall be considered sufficient notice from lessee or his assigns. to lessor of his or his assigns' election to purchase under this option."

The case is before us upon 17 propositions. However, it will not be necessary for us to consider these propositions separately. The principal inquiry is whether Weitzman had abandoned his business homestead at the time the execution in question was levied, and whether under the contract of lease with an option in the lessee to buy, and his admitted insolvency, the question of intent is material. He had executed an obligation to Nefziger, whereby the latter has an option for 10 years of buying the lot at a stated price. Nefziger had gone into possession under this contract. Weitzman then left the state, and while he had not acquired a homestead in Tulsa, for obvious reasons, it is, to say the least, persuasive evidence of an intention never to return and resume business in the property and the issue of abandonment under such circumstances becomes purely a question of fact. O'Fiel v. Janes (Tex. Civ. App.) 220 S. W. 371; Edmonson v. Blessing, 42 Tex. 596; Focke v. Sterling, 18 Tex. Civ. App. 8, 44 S. W. 611; De Hymel v. Scottish American Mortgage Co., 80 Tex. 493, 16 S. W. 311; Scott v. Parks (Tex. Civ. App.) 29 S. W. 216; R. E. Bell Hardware Co. v. Riddle, 31 Tex. Civ. App. 411, 72 S. W. 613; Kaufman v. Fore, 73 Tex. 308, 11 S. W. 278; Wynne v. Hudson, 66 Tex. 1, 17 S. W. 110. While a leasing of the property for 10 years, coupled with the possession of the lessee under a valid option to purchase during the term of the lease, may not in law amount to an abandonment, it is nevertheless strong evidence upon the issue against the lessor, which the court or jury may consider. Oppenheimer v. Fritter, 79 Tex. 99, 14 S. W. 1051. It is held in Wurzbach v Menger, 27 Tex. Civ. App. 290, 65 S. W. 679, that a renting for 10 years is conclusive of abandonment.

Appellant insists that it is and has been his intention to return to the property as soon as his wife had undergone a surgical operation and her health permitted. Although he had been in Tulsa for several months, where he says he went to have certain physicians operate upon her, this had not been done, and none of the numerous doctors which he said he had consulted in Tulsa, as well as in Wichita Falls, were called as witnesses to show that she even needed an operation. His wife did not appear as a witness upon that or any other issue. He had just been through the bankrupt court and had been denied a discharge as to appellee's debt because of...