Wolf v. Butler

• Decision Date: 10 October 1894
• Citation: 28 S.W. 51
• Parties: WOLF v. BUTLER.
• Court: Texas Court of Appeals

28 S.W. 51

WOLF v. BUTLER.

Court of Civil Appeals of Texas.

October 10, 1894.

Appeal from district court, Dallas county; R. E. Burke, Judge.

Action by F. W. Wolf against P. J. Butler to determine the validity of a mechanic's lien on premises claimed as a residence and business homestead. From a verdict for defendant, plaintiff appeals. Reversed.

Leake, Shepard & Miller, Dickson & Moroney, and H. C. Coke, for appellant. A. S. Lathrop and Short & Hill, for appellee.

FINLEY, J.

This suit involves the validity of the mechanic's lien upon property claimed to be the homestead. The amount of the debt to secure which the lien is claimed, that it accrued for material furnished and work done upon the building against which the lien is sought to be enforced, under contract, and that the statutory requirements in relation to fixing the lien were fully and strictly complied with, are admitted facts. The contract was verbal, and made with the husband alone, while the owner was a married man, the head of a family; and the validity of the lien is contested upon the ground that the property was intended as the homestead, — both residence homestead and business homestead, — and had been designated as such before the contract was entered into, etc. The property had not been actually occupied as the homestead, but its character as such, it is contended, had been impressed upon it by intention. The owner, A. Wagenhauser, was a brewer, and the building — a brick structure — was intended for a brewery; and there was evidence tending to show that it was also intended as the place of family residence. Appellee, Butler, knew at the time he entered into the contract that the building was intended by Wagenhauser as a place for the manufacture of beer, and the evidence tended to show that he knew it was Wagenhauser's intention to personally engage in the business. There is no evidence showing that Butler knew of any intention on the part of Wagenhauser to make it a place of family residence. On the trial the court charged the jury as follows: "To impress the character of a homestead upon property, when there has been no previous occupancy, as in this case, there should be a bona fide intention to dedicate it as a home, and this intention should be evidenced by some unmistakable acts showing an intention to carry into execution such intent. If from the evidence you find and believe that, at the time Butler furnished the material and did the work on the brewery, it was the bona fide intention of Wagenhauser to use the building as a home for himself and family, and this intention was evidenced by some unmistakable acts on the part of Wagenhauser of preparation, and subsequent early use of the property as a home as soon as possible under the existing circumstances, then, since the contract with Butler was not in writing, signed, and acknowledged by his wife, Mrs. Wagenhauser, as required by law, no lien could attach to the same, and in this event you should find for the plaintiff, Wolf." This charge is intended to present the law as to the issue of residence homestead, informing the jury what would constitute a designation of the property as the residence homestead of the family, and is assigned as error.

In Barnes v. White, 53 Tex. 631, it is said: "Where there has not been a previous actual occupancy, there should be at least a present bona fide intention to thus dedicate the property, coupled with such acts of preparation and subsequent early use as a homestead, as would reasonably amount to this notice, and thus prevent that from being used as an instrument of fraud which was designed as a shield of protection." In Brooks v. Chatham, 57 Tex. 33: "There must be something more than mere intention. There must be some act done which will evidence an intention to use it as a home." In Gardner v. Douglass, 64 Tex. 78: "With us an actual occupancy of the land is not, under all circumstances, an indispensable prerequisite, in impressing upon it the homestead character. But, where there has been no previous occupancy of the land as a homestead, then, to invest it with that quality, it has been held essential that there be an existing, bona fide intention to dedicate the property as a homestead; and this intent must be accompanied with such acts of preparation, and such prompt subsequent occupation, as will amount to notice of the dedication, and thereby prevent this most valuable right from being converted into an instrument of fraud." In Archibald v. Jacobs, 69 Tex. 252, 6 S. W. 177, this language in the charge was approved: "The person claiming the same must not only intend to dedicate the same for homestead purposes, but must actually occupy it for such purposes, or must take such steps towards preparing the same for use and occupancy as a homestead as reasonably to give notice of his intention to use and occupy the property either as a home, or place to exercise his calling or business." In Franklin v. Coffee, 18 Tex. 417, Mr. Hemphill, C. J., says: "There must be a preparation to improve, and this must be of such a character and such an extent as to manifest beyond doubt the intention to complete the improvements, and reside upon the place as a home." In McKay's Case, 30 Tex. 191, Mr. Willie, J., says: "The intention thus to appropriate the property shall not only be found in the mind of the party, but it should be evidenced by some unmistakable acts showing an intention to carry the design into effect, or some sufficient reason should be given why this intention of the party was not demonstrated by such acts." In Cameron v. Gebhard, 85 Tex. 610, 22 S. W. 1033, the various decisions are reviewed, beginning with Franklin v....