Rampy v. Nance

286 S.W. 292, 1926 Tex. App. LEXIS 1033

Opinion

WILLSON, C. X

(after stating the facts as above). It appeared in the testimony that’ an undivided half of the 700 or 800 acres of' land referred tó in the statement above, including 257 acres of -the Henry Rampy survey, belonged to appellant J. I-I. Rampy, and that the other half thereof belonged to his children by his first wife. The trial court found that, said appellant and his first wife' during many years before her death resided upon and used 200 acres of said Henry Ram-py survey as their homestead, and that said appellant and his second wife at the time the trust deed was executed, and during many years before that time, resided upon and so used the 200 acres.

The finding is attacked only so far as it was that the 200 acres was appellants’ home stead' at the time they executed the trust deed. Appellants insist it appeared that the land in controversy, and not the 200 acres of the Henry Rampy survey, was then their homestead. The insistence is predicated on the testimony of appellants as witnesses that two or three months before the trust deed was executed appellant and his said children effected a verbal partition of the 700 or 800 acres of land above referred to, in which the land in controversy was set apart to appellant J. H. Rampy, and in which the part of the Henry Rampy survey appellants resided upon at the time they executed the trust deed was set apart to one of said children; and the further testimony of appellants that in said partition the dwelling house in which they then resided on said Henry Rampy survey was also set apart to appellant J. H. Rampy, and that appellants then formed the intention, never thereafter-ward abandoned, to move the dwelling house to the land in controversy and make same their homestead. Said land in controversy was about one mile from the part of the Henry Rampy survey appellants resided upon at the time they testified they formed such intention, and there was no testimony that appellants at the time they executed the trust deed had done anything whatever toward carrying out the intention they testified they had formed, nor was there any testimony that appellee’s testate knew anything about such verbal partition,' or that appellants entertained such an intention at the time he loaned them the money sued for and accepted the conveyance of the land in controversy as security for the repayment of the loan. It appeared from deeds made April 22, 1920, to evidence, it was claimed, the partition above referred to as having been verbally made before April 1, 1920, when the trust deed was executed, that 297% acres of the 700 or 800 acres belonging to appellant J. H. Rampy and his children were set apart to the children, and that the remainder of the 700 or 800 acres was set apart to said appellant J. H. Rampy. There was no testimony showing anything about the land set apart to said appellant J. H. Rampy in the partition other than the 200 acres in controversy.

We will not underbake to determine whether, had it conclusively appeared that a verbal partition of the land was effected between appellant J. I-I. Rampy and his children by his first wife before appellants executed the trust deed, and that appellants when such partition was effected formed an intentión to make the land in controversy their homestead, the judgment could be upheld or not, for we do not think it so appeared. It may be conceded there was no testimony directly contradicting that given by appellants, but the credibility of appellants as witnesses and the weight to be given their testimony were matters for the trial court to determine, and we think he had a right to conclude that the partition of the land between appellant J. H. Rampy and his children by his first marriage was not effected until April 22, 1920, the date of the partition deeds, which was several weeks after the time when the trust deed was executed; or to conclude, if he thought such partition was effected before said trust deed was executed, that appellants never formed an intention to make the land in controversy their homestead until after the time when they executed said trust deed.

The judgment is affirmed.