Pierce v. Langston

193 S.W. 745, 1917 Tex. App. LEXIS 302

• Court: Court of Appeals of Texas
• Decided: February 19, 1917
• Docket: No. 5738.
• Status: Published

Opinions

KEY, C. J.

Appellees acquiesce in the correctness of appellant’s statement of the nature and result of this suit, which is as follows:

“This suit was brought in the district court of Coryell county, by appellant, J. L. Pierce, as plaintiff, to recover of appellee W. G. Langston, as defendant, the amount due upon 94 certain promissory notes executed by said Langston to Pierce for $23.75 each and, to foreclose a vendor’s lien securing same on 198 acres, more or less, of the Contad Miglich, A. Wood, and Wm. Suggett surveys in Coryell county, Tex. Suit was filed December 23, 1915. It was alleged by plaintiff that the land above described was conveyed by plaintiff to defendant in consideration, among other things, of the execution of the notes above described, and in further consideration of the assumption and promise to pay by defendant of a certain note for $4,000, payable to J. D. Brown and of nine certain notes for $388 each, payable to A. P. Graves, and that the lien sought to be foreclosed was subject to a prior lien securing said Brown and Graves indebtedness.

“On the 27th day of December, 1915, plaintiff duly filed in this cause his affidavit and bond for attachment, wherein he complied in all respects with the law, and on the same date writ of attachment duly issued, directed to the sheriff or any constable of Comanche county, in obedience to which writ the sheriff of Comanche county did, on said 27th day of December, 1915, levy upon as the property of the defendant W. G. Langston a certain 126.5 acres of land out of the John Elliott survey in Comanche county, as fully and regularly appears from the return of said officer.

“On the 12th day of January, 1916, defendant W. G. Langston, joined voluntarily by his wife, the defendant T. E. Langston, answered, admitting the execution of the notes sued on, but charging in defense a fraudulent promise of plaintiff, J. L. Pierce, to protect them, de fendants against a foreclosure of the lien of the Graves notes aforesaid in the event defendants were unable to pay said notes at maturity, and by said answer asking judgment for rescission'of the notes sued on herein, together with damages by way of cross-action on said alleged fraudulent promise.

“Answering to the writ of attachment, defendants specially pleaded that the land levied on thereunder was, prior to and at the time of the levy, the homestead of defendants, and exempt from attachment, urging in support of said plea that defendant W. G. Langston was the head of a family; that the land levied on was purchased with the intention of making same the future homestead of defendants; that defendants were improving said property and preparing to move upon same at the time of the levy; that said property was rented for the year 1915; and that the tenant, Mrs. Mattie Parsons, held such property for defendants as their homestead.

“Plaintiff, by general and special exceptions, challenged the sufficiency of the matters set up by said answer, and by supplemental petition specially pleaded in reply to the homestead plea of defendants that, at the time and prior to the time of the levy of the writ of attachment on defendants’ land in Oomanche county, defendants owned and were using and occupying as their homestead other land, to wit, 200 acres, more or less, of the Oonrad Miglieh, A. Wood, and Wm. Suggett surveys in Coryell county, fully described in plaintiff’s original petition.

“On the 18th day of January, 1916, the case went to trial with a jury, and after hearing the evidence upon the various issues presented, the court instructed a verdict in favor of plaintiff for the amount of the principal, interest, and attorney’s fees due on the notes sued on, together with a foreclosure of the vendor’s lien on the premises described in plaintiff’s petition subject to the Brown and Graves vendor’s lien aforesaid, and also instructed a verdict for plaintiff on defendants’ cross-action for damages, and judgment was entered accordingly. The issue of homestead as to the Comanche county land was submitted to the jury, and upon its verdict and the judgment of the court thereon, finding for defendants upon this issue and denying to plaintiff a foreclosure of his attachment lien on the Comanche county land, plaintiff prosecutes this appeal.

“Plaintiff’s amended motion for a new trial was duly filed and presented, and on the 7th day of February, 1916, was by the court overruled, to which action plaintiff duly excepted and in open court gave notice at the time of appeal to the Court of Civil Appeals of the Third District, and thereafter, on the 26th day of February, 1916, perfected appeal by the filing of his appeal bond, and the case is now presented to this court for review.

“As an aid to the court, counsel for appellant would state that the several assignments presented herein are all controlled in large measure by the one question: ‘Do the undisputed facts in this case establish that on the 27th day of December, 1915, the date of the levy of plaintiff’s writ of attachment on the land of defendants in Comanche county, the defendants owned those certain other lands in Coryell county described in plaintiff’s original petition which, by virtue of the nature of their use and occupancy, constituted the homestead of defendants? and, if so, whether, with a homestead thus actually dedicated and actually occupied as a home, the prior designation and improvement of the land in Comanche county levied on by the writ, accompanied with declaration of intention to make such latter place their homestead, and with acts of preparation to such end, was sufficient to establish such land as the homestead of defendants on said date and to divest their actual home of its homestead character in the face of, the fact of occupancy and all other accompanying circumstances that go to make a homestead.’ On the trial the following facts, bearing directly on the issue thus presented, were established, without controversy, to wit:

“Plaintiff’s attachment was duly levied on the land of defendants in Comanche county on the 27th day of December, 1915, at 11 o’clock p. m. Defendants acquired the Coryell county land by deed of date January 14, 1915, and moved on said property on the 27th or 28th of said month. They moved on it with the bona fide intention of making same their home. It was their home. Defendants actually resided on said property with their family from the time they moved upon same until the 7th day of January of the next year; that is, January 7, 1916. Until said last-mentioned date, none of the household goods or anything connected with their home had been removed by defendants from their Coryell county property. At the date of the trial, defendants Mrs. T. E. Lang-ston, nor any of the family, save W. G. Lang-ston, had removed from the Coryell county property, but were then, as they had been continuously, residing upon same. Defendant W. G. Langston himself, at the date of the trial and during the trial, remained on the place. The property at the date of the trial was still owned by W. G. Langston. He had not deeded the property to any one, and there had been no sale of the property at all. Just an offer on his part to sell.

“Defendant W. G. Langston bought the Comanche county property about the 1st day of September, 1915, and moved on it the 9th day of January, 1916. He had left the Coryell county property on Friday, January 7th, and arrived on the Comanche county property Sunday, January 9th. Up to this time he had not moved and placed upon the Comanche county property any of his live stock or furniture. When he bought the property on the 1st day of September from Mr. Waldrop he designated the same as his homestead by recitation contained in the deed. Defendant W. G. Langston bought the land in Comanche county for a home and with the bona fide intention at the time of making it his future home. At the time he purchased the Comanche county farm, Mrs. Parsons was living on it, and had it rented for the year 1915. He improved the property prior to the filing of the suit by building a lot and six hog pens. Defendant Mrs. Langston, at the date of the trial, had never seen the Comanche county property, but says that it had been her intention and that of Mr. Langston all the time to move on it as their home in the future, and that Mr. Langston had put some improvements on the place and had held back enough money to build a house thereon suitable to live in. She had not moved because the trial was so near at hand, but had set a time to move before the trial, but the weather was too bad. She testified also that they had resided continuously on the Coryell county property from the date of the purchase until January 7th, and that she and the family remained on the property at the date of the trial, during all of which time the property was considered the home and residence of defendants, where they lived and had-all their equipment of a home.

“Mr. Langston authorized one Wr. A. McBeth to go to Mr. Graves and offer to deed the property back to him about a month or so before the trial, which Mr. McBeth testifies he did, but that Mr. Graves refused to accept a recon-veyance. The defendant W. G. Langston in person offered to deed the property to J. D. Brown, and testified that since some time in July, 1915, when he realized he could not pay the indebtedness against same, he had abandoned the Coryell county property and not intended to live on it.

“In his motion for a new trial, appellant presented numerous assignments of error, assailing the action of the court on the indicated home stead issue. Four of these assignments are perpetuated in this brief, which are thought to be sufficient to submit the essential question involved. They relate respectively to the sufficiency of defendants’ homestead plea, to _ the charge of the court, which submitted to the jury as a basis for judgment for defendants on the homestead issue the question of intention and preparation to occupy the land in controversy when it appeared that there was already an existing homestead, the - refusal of a requested peremptory instruction for ijlaintiff on the homestead issue, and the sufficiency of the evidence to support the verdict and judgment as to such issue, and the assignments are presented in the order named.”

Opinion.

[1] The controlling question involved in this appeal may be stated as follows: When a homestead has been actually dedicated and is then being occupied and used as a home, is other property exempt from an attachment lien and sale thereunder, when the undisputed proof shows that such other property was purchased for the declared purpose and with the intention upon the part of the husband and wife to occupy and use such other property as a homestead, accompanied by improvements thereon and preparation to move upon and so occupy it, the proof showing that at the time the attachment was levied the husband and wife, together with their children, still occupied the former home, and did not move upon the other place until a short time after the attachment was levied?

The undisputed facts of this case bring it within the scope of the hypothetical question just stated, and if that question can properly be answered in the affirmative, the judgment in this case should be affirmed. On the contrary, if the law requires a negative answer to that question, the case should be reversed. That question has already been decided in appellant’s favor by several decisions rendered by our Supreme Court. Archibald v. Jacobs, 69 Tex. 248, 6 S. W. 177; Johnston v. Martin, 81 Tex. 18, 16 S. W. 550; O’Brien v. Woeltz, 94 Tex. 148, 58 S. W. 943, 59 S. W. 535, 86 Am. St. Rep. 829. The first case cited is perhaps the leading case upon that subject, and we quote from it as follows:

“If everything the plaintiffs’ evidence tended to prove be conceded, how stands the case? We have an insolvent debtor owning and actually using a residence and business house in no way connected with the property in controversy, but he had commenced to improve this property, and intended at some future time to use it as a residence and place of business. * * * There can be no doubt that the property on which they resided -at the time of the assignment was made was * * * protected from forced Sale, and they could not divest it of that character by an intention to abandon it at some future time, even though that intention was evidenced by the fact that they had commenced to improve the property in controversy with intent to use a part of it as a residence. * * * Abandonment of property actually homesteaded cannot be accomplished by mere intention; there must be a discontinuance of the use, coupled with an intention not to again use as a home to constitute abandonment, and without an abandonment of an existing homestead no right can exist to fix that character to another property. * * * There could not be two places of residence for the family, separate and in no manner used together, and it must be held that the home in fact existing at the time the assignment was made was the only property which the ap-pellees could claim as a residence homestead. Where no homestead dedicated by actual occupancy exists, effect must be given to ownership, intention, and preparation to use for a home, or otherwise one-indebted might never be able to secure a home for a dependent family. This was recognized in Franklin v. Coffee, 18 Tex. 417 [70 Am. Dec. 292]; Barnes v. White, 53 Tex. 628; Swope v. Stantzenberger, 59 Tex. 890; Gardner v. Douglass, 64 Tex. 79. But no case was given to the extent of holding, when there was a home in fact, that this might be abandoned while actually used as the home of the family, and another homestead acquired by intention at some time in the future to use it as a home, accompanied with preparation to so improve it, as to make it suitable for such a use.”

Counsel for appellees attempt to distinguish this from the line of cases cited upon two grounds, which are: (1) That the property levied upon, and which they intended to use as their homestead, was at that time under lease, and that they were not then entitled to possession; and (2) that as appellants’ suit was based upon vendor’s lien notes against the property then occupied by them as a home, and as the proof shows that the property was not worth as much as the lien amounted to, the general rule announced in Archibald v. Jacobs and the other cases to the same effect should not apply to this-case.

[2] The answer to the first question is that appellees, having one homestead, could not acquire another until the existing homestead was abandoned, and such abandonment could only be accomplished by removal from and cessation of use of the existing homestead, and therefore their reason, or attempted excuse, for remaining in possession of the existing homestead becomes immaterial. It is the fact that they remained in possession of the existing home, and not their reason for so doing, that shows that they had not abandoned that homestead.

[3] The second contention is answered by the decision of the Galveston Court of Civil Appeals in Powers v. Palmer, 36 Tex. Civ. App. 212, 81 S. W. 818, in which the court said:

“The uncontradicted evidence shows that ap-pellees had their home * » * in block 19. * * * This property had been purchased by them for a homestead and they had continuously occupied it as such. * * * The fact that it was not paid for in no way affected their homestead rights. * * $ It is equally as well settled that, having title to said property sufficient to support a homestead right, and being in actual possession and occupancy of same, appellees would not lose their homestead right in the. property by declaring their intention of abandoning it, or by acquiring other property with the intention of making it their homestead. * * * The agreement made by appellee * * * with the agent of the loan company that he would hold the property for said company did not divest appellees of their title to the property, and would not have prevented them from asserting their homestead rights therein at any time. Nor do we think the fact that the indebtedness due upon the property largely exceeded its value can affect the question. This fact is but a circumstance going to show that appellees in good faith intended to abandon their homestead rights in the property, and, under the evidence, there can be no question that such was their intention. They failed, however, to divest themselves of either the title or possession of the property, and their mere intention to abandon it did not change its homestead character. If, at any time prior to the sale under the foreclosure judgment, the appellees had, from any cause, seen fit to change their intention of abandonment, it cannot be doubted that they could have asserted and. enforced their homestead rights in the property. So long as their homestead rights in this property were protected and secured to them by the law, they' could not acquire a homestead upon other property. Johnston v. Martin, 81 Tex. 18 [16 S. W. 550]; Archibald v. Jacobs, 69 Tex. 248 [6 S. W. 177]; Allen v. Whitaker, 27 S. W. 507; Sharp v. Johnston, 19 S. W. 259. Their title to this property was not divested out of them until the sale under the judgment foreclosing the vendor’s lien. * * * We think it must be held * * * that appellees had no homestead right in the property, and * * * judgment [is] here rendered-in favor of appellant.”

In addition to what was said in that case, the writer deems it proper to express his individual opinion to this effect: When property has been conveyed by deed, the vendee has such title as will support the homestead right, and although the vendor may have a valid lien that can be enforced as against the homestead right, and although liens for taxes and certain other contract liens may he so enforced as against such right, the property does not lose its status as a homestea’d, although it is subject to forced sale to satisfy such liens. In other words, no person can have two homesteads at the same time, and if one already has an existing homestead, which is being used as such, that is the only property which the law will protect as a homestead, although the debt which the creditor is seeking to enforce against other property may be secured by a superior lien upon the homestead. To illustrate the point as to which place was appellees’ homestead: Suppose the property upon which they resided had been worth twice as much as the vendor’s lien notes, and appellant had sued upon an unsecured debt in addition to the vendor’s lien notes, and had sought to subject that property to the payment of such unsecured debt by showing, as appellees have shown, that they had bought the property now in controversy for the purpose of making it their home, had put improvements upon it before execution to satisfy the judgment for the unsecured debt was levied upon the property they were living on, would the courts hold that such other property, and not the existing home, was the homestead of ap-pellees at the time such levy was made upon it? That is only a different way of stating the question, which has already been decided in this state in appellant’s favor. Hence we conclude that this appeal must he decided in favor of appellant.

Appellees’ cross-action was decided against them by the trial court, and as they have assigned no error upon that branch of the case, and as the facts ¡upon which the appeal is based are undisputed, it becomes our duty to reverse the case, with instructions.

Therefore the judgment of the trial court, refusing to foreclose appellant’s lien upon the property in controversy, is reversed, and the case is remanded to that court, with instructions to render judgment for appellant foreclosing his attachment lien upon the property in controversy, and ordering the same sold to satisfy whatever amount of his judgment debt, if any, may remain unpaid after the sale of the other property upon which the judgment of the trial court foreclosed the vendor’s lien.

Reversed, with instructions.

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