Woeltz v. Woeltz

• Decision Date: 06 June 1900
• Citation: 57 S.W. 905
• Parties: WOELTZ v. WOELTZ et al.
• Court: Texas Court of Appeals

57 S.W. 905

WOELTZ v. WOELTZ et al.

Court of Civil Appeals of Texas.

June 6, 1900.

Error from district court, Bexar county; S. J. Brooks, Judge.

Suit by Ida Woeltz against August Woeltz and another. From the decree, plaintiff appeals, and defendants file cross assignments. Reversed in part.

See 57 S. W. 35.

C. H. McGinnis and J. A. Buckler, for plaintiff in error. Geo. C. Altgelt, for defendants in error.

FLY, J.

Mrs. Woeltz instituted this suit against August Woeltz, her husband, for a divorce, alimony, and a partition of their community estate, and under the allegation that John O'Brien held a deed of trust on community property that was void because it was the homestead of herself and husband she made O'Brien and the trustee, J. A. Daugherty, parties to the suit, and asked for a cancellation of the deed of trust. The cause was tried by the court, and judgment rendered in favor of Mrs. Woeltz for a divorce, attorney's fees, and custody of the children, and for a cancellation of the deed of trust as to all of lot 14 except the land on which the storehouse stands and as to lots 12 and 13 in block 30. Mrs. Woeltz appealed the case, and O'Brien and August Woeltz file cross assignments.

The land in controversy is lots 7, 8, 12, 13, and 14 in block No. 30, which block is bounded on the north by Lake View avenue, on the south by Chaves street, on the east by North Pecos street, and on the west by North Leona street, as more fully appears by the following plat:

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

Also lot 2 in block 4, directly across North Pecos street from lot number 14, above described. The undisputed testimony established that in 1893 Woeltz and wife had their homestead on lot 14, the residence being on the north end of the lot. On the south half of the lot were sheds, which were used for a stable, the carriage horses going into the shed from the south of the lot, the sheds being closed up on the north side next to the residence. The sheds were being so used when, in 1893, Woeltz and wife determined to build a storehouse in the southeast corner of lot 14, the back part of it running across into lot 13. At this time, and until the new storehouse was completed, August Woeltz was occupying as his business homestead lot 2 in block 4, across the street from his residence. The testimony establishes that there was no fence dividing the north from the south part of lot 14, except that which formed the back part of the stable in which the horses used by the family to the carriage were kept. Desiring money to build the storehouse, Woeltz gave a deed of trust to O'Brien on the south half of lot 14, and lots 7, 8, 12, and 13, in block 30, and lot 2 in block 4,— or, in other words, on all the real estate except the north half of lot 14,—and obtained $6,000, which he used in building a brick storehouse on the southeast corners of lots 14 and 13. There was a tenement house on lot 8 next to North Pecos street, which was rented out. The remainder of lot 8 and lots 7, 12, and 13 were used for a camp yard, being separated from lot 14 by fences. Woeltz testified that when he began building the storehouse he tore the sheds down, and at the request of O'Brien placed a fence between the north and south halves of lot 14. At the time the money was borrowed and the mortgage executed, a cellar had been excavated for the foundation of the storehouse on the southeast corner of lot 14. The storehouse in which Woeltz was doing business at the time the mortgage was given was his business homestead, and the mortgage thereon was null and void. Duke v. Reed, 64 Tex. 705; Inge v. Cain, 65 Tex. 75; Hays v. Hays, 66 Tex. 606, 1 S. W. 895; Willis v. Mike, 76 Tex. 82, 13 S. W. 58; Madden v. Madden, 79 Tex. 595, 15 S. W. 480; Meyer v. Paxton, 4 Tex. Civ. App. 29, 23 S. W. 284; Marks v. Bell (Tex. Civ. App.) 31 S. W. 701; Caywood v. Henderson (Tex. Civ. App.) 44 S. W. 927. The subsequent abandonment of the business homestead did not have the effect of giving vitality to the void mortgage. Being void at the time of its execution, it could not be rendered valid by something occurring thereafter. In the Inge-Cain Case, above cited, it was said: "We are of the opinion that the clause quoted from the constitution of 1876 renders all liens upon the homestead, not expressly excepted, absolutely void, and that they are not vitalized by the divestiture of the homestead character. The owner is no longer tempted to stake the home of his family upon desperate or delusive ventures, and the creditor can no more gamble upon the chances of the cessation of the homestead use." In the case of Hays v. Hays, supra, in which a deed was shown to be a mortgage, it was said: "Objection was also made that the petition did not allege that Mrs. Hays had not acquired another homestead since the date of the deed, and had no homestead when the suit was begun. Such an allegation was wholly unnecessary. The deed was made since the adoption of the constitution of 1876. If the deed was in reality a mortgage upon the homestead, it was wholly null and void, and no subsequent acquisition of another homestead by the grantor could give it validity." In the case of Marks v. Bell, it was said by the court of civil appeals of the Fifth district: "It is also true that any contract for a lien upon the homestead, unless within the exceptions of the constitution, is utterly void. No subsequent abandonment of the homestead will give validity to the contract, and, the contract being wholly void, no lien can arise thereunder." No case questioning the propositions announced in the aforementioned cases has been brought to our notice, but the doctrine therein has been reiterated many times in this state. In the cases of Marler v. Handy, 88 Tex. 421, 31 S. W. 636, and Stallings v. Hullum, 89 Tex. 431, 35 S. W. 2, deeds were made to homesteads by the husbands without being joined by the wives, and upon a subsequent acquisition of other homesteads it was held that...