Vaughn v. Vaughn , 1955 Tex. App. LEXIS 1827 ( 1955 )

FANNING, Justice.

Appellant, Stella Vaughn, the surviving wife of A. L. Vaughn, deceased, who elected not to take under her.deceased husband’s will, as plaintiff sued Zac Vaughn, Independent Executor of the estate of A. ,L. Vaughn, Deceased, specifically alleging that a 40-acre tract of land, a 36-acre tract of land. and a 48-acre tract of land, .the separate property of her-deceased husband, constituted - the homestead ■ .of hepself, and her deceased husband prior tq- his death, and that they resided upon, used, claimed and enjoyed said premises as ,their homestead, and used the rents and. revenues therefrom for their, sustenance and support, and. in this connection further- specifically alleged that the ,40-acre tract and the 36-acre tract were contiguous and adjoining and were the identical premises on which plaintiff and A. L. Vaughn actually resided at the time of his death. Plaintiff also specifically alleged that the 48-acre • tract was located a few miles distant from the other two tracts but that the rents, revenues and income therefrom were used by plaintiff and her deceased husband for their sustenance 'and support. Plaintiff further alleged that she had continued to reside upon, and to use and claim the same as her homestead and that plaintiff had no other homestead, etc. Plaintiff prayed that the defendant, as executor, be required by the court to set aside to her use as a homestead the said three tracts of land. Plaintiff also sued appellee executor for an accounting on the rents and revenues on'the alleged homestead property, for one-half of 'the community property of herself and husband remaining after the payment of community debts, for an allowance of $500 in lieu of exempt property, for an allowance of $1,000, or for such other sum as might he found appropriate for' one year’s support, etc.

Defendant in addition to generally denying the allegations of plaintiff pleaded specially that the three tracts of land were the separate property of A. L. Vaughn, deceased,-' and that the 40-acre tract alone constituted the homestead óf A. L. Vaughn; and also that his will in effect designated said 40 acres as his homestead; defendant also stated the account between' parties, alleging certain indebtedness against plaintiff in favor of her husband’s estate for which recovery was sought; defendant also pleaded that certain advancements made to decedent’s children did not constitute a claim in favor of appellant; defendant also resisted appellant’s claim for allowance in lieu of exempt property; defendant, also pleaded a rental contract whereby Zac Vaughn had rented the 40- and 36-acre tracts from his father for the year 1954.

The case was tried by the .court, without the intervention of a jury. The trial court found that the 40-acre and 36-acre tracts, contiguous to each .other, were the homestead of appellant and set aside said two tracts to her as homestead, and also awarded to her the rents and revenues from said two tracts. The trial court also specifically found that the 48-acre tract (not contiguous to the other two tracts), the separate property of A. L. Vaughn, did not constitute any part of the homestead of plaintiff and the said A. L. Vaughn, deceased, and that the rents and revenues collected therefrom after the date of the death of A. L. Vaughn were not the community property, of appellant and the said A. L. Vaughn. The court also allowed appellant $750 for one year’s support, allowed her $100 in lieu of exempt personal property not on hand at the death of decedent, and also awarded her certain items of exempt personal property. The court also found that plaintiff was indebted to decedent’s estate in the sum of $173.55, which was allowed as an offset and credit to the amount to which plaintiff was entitled; the court also found that plaintiff was entitled to one-half of certain community property and one-half of community funds after the payment of certain community debts, that the executor should make diligent efforts to collect certain advancements made, etc., that-appellee was entitled to an agricultural lease on two of the tracts. The court also divided the court costs, stating his reasons therefor. Mrs. Stella Vaughn has appealed.

Appellant presents nine, points. . Her points 1 and 2 read as follows.:

1.' “The trial court erred in finding and holding, and in rendering judgment accordingly, that the forty-eight acre tract of land out of the :E. W. Pittman Survey in Fannin County did not constitute a part of the plaintiff’s homestead, and in denying her judgment therefor.

2. “As a necessary corollary to appellant’s first point (above), the trial court erred in failing and refusing to hold that, and in denying plaintiff judgment for, the rents and revenues, or the proceeds thereof, for the year 1953, and so long thereafter as the same should be her homestead, ' accruing from the forty-eight acre tract of land out of the E. W. Pittman Survey in Fannin County.”

■Appellant’s points 5 to 8, inclusive, complaining of other matters, however, are couched in the same form as points 1 and 2, supra. Point 9 complains of the trial court’s taxing costs equally against the parties.

Appellee in his counterpoints 1 to 9, inclusive, contends that appellant’s points 1 to 9, inclusive, are only assignments “in effect asserting that the evidence conclusively establishes a certain fact of compels a certain conclusion and thus raises a question of law and does not determine the jurisdiction of the Court of Civil Appeals to determine a fact issue.” Appellee in support of these nine counterpoints has cited the following authorities: Miguez v. Miguez, Tex.Civ.App., 221 S.W.2d 293; De Busk v. Guffee, Tex.Civ.App., 171 S.W. 2d 194; Clark v. Cohen, Tex.Civ.App., 205 S.W.2d 797; Brown County Water Improvement Dist. No. 1 v. McIntosh, Tex. Civ.App., 164 S.W.2d 722; Krumb v. Porter, Tex.Civ.App., 152 S.W.2d 495.

Appellee’s 10th counterpoint reads as. follows:

“Appellant’s points, if they are legally sufficient, only assert ajs error that the findings are against the preponderance of the evidence and do not present any points'That the findings are so against the overwhelming weight and preponderance of the evidence as to be clearly wrong and unjust, and place no burden on the Court of Civil Apr peals to examine the record as a whole.”

Appellee in support of his counterpoint 10 cites the case of Poynor v. Varner, Tex. Civ.App., 266 S.W.2d 462, 463. We quote from the court’s' decision in this case as follows':

“Appellant’s points that the findings are against the preponderance of the evidence do not present the point that such findings were so against the overwhelming weight and preponderance of the evidence as to be clearly wrong and unjust. In re King’s Estate, [150 Tex. 662] 244 S.W.2d 660, 662; Texas Employers’ Ins. Ass’n v. Moran, Tex. Civ.App., 261 S.W.2d 855, 856 (application for writ of error dismissed for want of jurisdiction). However, after a careful study of the statement of facts, we think the result would probably have been the same. In determining whether the findings are against the preponderance of the evidence we are required to consider only the evidence favorable thereto and if the evidence favorable thereto and to disregard all evidence to the contrary raises a question of fact on which reasonable minds might differ we are not authorized to set aside the findings.” (Citing authorities.)

Appellee’s counterpoint 11 reads as follows:

“Appellant’s points to the effect that the court erred in entering his judgment because the same was contrary to law and evidence in the case are too general to call attention to any particular ruling or action of the trial court and presents nothing for review.”

Appellee in support of this counterpoint cites the case of Novita Oil Co. v. Smith, Tex.Civ.App., 247 S.W.2d 151, 153. We quote from this case as follows:

“The seventh point is, ‘The court erred in entering judgment for the plaintiff upon the verdict of the jury because the verdict of the jury was contrary to the law and the evidence in this case.’ This point is too general to call attention . to any particular ■ruling or action of the trial court and does not present any question for our decision. [Texas Rules of Civil Procedure] Rule 322; Neinast v. Hill, Tex.Civ.App., 206 S.W.2d 625, 627; AAA Air Conditioning & Mfg. Corp’n of Texas v. Barr, Tex.Civ.App., 186 S.W.2d 825, 826 (WR); Rules 374, 321, 418(b) and 420. * * *

“In Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478, it was held that if a point calls attention to the particular ruling or action complained of, it is sufficient and the court will look to such a point and the statement, argument and authorities thereunder to determine the question of reversible error. We have wasted much time in a serious endeavor to ascertain what questions we are called upon to decide. Without intending to set a precedent, we have concluded- to pass -upon the questions intended to be presented where such intent can be reasonably ascertained from the points and ■ assignments considered in the light of the statement, argument and authorities.”

Appellee’s counterpoint 12 reads as follows:

“Appellant’s points, if they are legally sufficient, which in effect present only the question of no evidence, do not invoke the jurisdiction of the Court of Civil Appeals to decide the sufficiency of the evidence to support a finding; and if there is any evidence the judgment of the trial court must be sustained.”

In support of this counterpoint appellee cites the case of J. A. & E. D. Transport Co. v. Rusin, Tex.Civ.App., 202 S.W.2d 693, which holds that a point raising the “no evidence” complaint does not question the sufficiency of the evidence and if there is any evidence the judgment must stand. To this authority there can be added a recent case of the Supreme Court of Texas, Releford v. Reserve Life Ins. Co., 276 S.W.2d 517, 518, wherein the Supreme Court said:

“We note that the Court of Civil Appeals said in its opinion that ‘the answer of the jury to Issue No. 1 is “so against the great weight and preponderance of the evidence as to be clearly wrong” ’, and that ‘certainly there is not sufficient evidence in this record to support the judgment of the trial court.’ We have carefully examined the points of- error contained in appellant’s brief in the Court of Civil' Appeals and we find no point challenging the sufficiency" of the evidence tó support the jury’s verdict. The court would have no authority tó remand th'e cause on points of error raising only ‘no evidence’ questions. Hall Music Co. v. Robinson, 117 Tex. 261, 1 S.W. 2d 857; Liberty Film Lines v. Porter, 136 Tex. 49, 146 S.W.2d 982.”

While . we are inclined to agree with appellee, under the authorities cited above, that at least to a certain extent the scope of judicial review in this case is somewhat limited; we have reviewed the entire record and have reached the conclusion that a full judicial review will reveal that the judgment of the trial court was correct on the merits and that the judgment of . the trial court should be affirmed. In view of this we deem it unnecessary to specifically pass on appellee’s counterpoints questioning the sufficiency and scope of appellant’s points.

Appellee by his counterpoint 13 contends that the trial court correctly rendered judgment holding the 48-acre tract to be no part of plaintiff’s and her deceased husband’s homestead because such holding is supported by the evidence. Appellee , by his counterpoint 14 contends that the burden of proof was on appellant to establish that the 48-acre tract constituted a part of the homestead in question and when appellant failed to do so, the trial court correctly rendered judgment declaring the same not to be her homestead.

Appellant and A. L. Vaughn married in 1929 and went to live on her farm in Wil-barger County, Texas. (Her farm was later lost by foreclosure.) At the time of and prior to 'said marriage, A. L. Vaughn and his children of a prior marriage owned six tracts of land in Fannin County, Texas, aggregating 238 acres, which were then rented out and A. L. Vaughn did not have possession of any of it. The record is also silent as to whether A. L. Vaughn had prior thereto impressed a homestead use or right upon any particular portion of the 238 acres. The record also does not reveal that A. L. Vaughn ever executed a formal written designation of any particular land anywhere as -his homestead. In 1930, in a partition suit between A. ’L. Vaughn and his children of a prior marriage, A. L. Vaughn was decreed title to a 64-acre tract and to a 48-acre tract, which was 2½ or 3 miles away from the other tract.' Thereafter A. L. Vaughn purchased with his separate funds a 12-acre tract, contiguous to the 64-acre tract, and this made two contiguous tracts of 40 and 36 acres. These three tracts were rural property not located in a town, village or city. Appellant and her husband, A. L. Vaughn, continued to live on her farm in Wilbarger County, Texas, until ‘ 1932, ■ (except for part of the time when Mr. Vaughn stayed with his daughter), when they moved and took up residence in a house on the 40-acre tract in Fannin County and where they continued to reside until Mr. Vaughn’s death in July, 1953. Mr. Vaughn was 86 years old at the time of his death, and Mrs. Vaughn'was about 76'or 77 years old at that time.

Appellant, Mrs. Vaughn, testified that the 40 acres was where the home house was, that the 36-acre tract joined the 40 acres and that' the 48 acres was located away from the two tracts “about 2 miles and a half or 3 miles. I don’t know-whether that was from Bailey or where we lived. We were just south of Bailey.” Appellant also testifiéd that if the three tracts were a homestead, she was claiming it and had not abandoned it. At one place in her testimony she testified: ' ‘

“Q. Did you use the rents and revenues from all three tracts for your maintenance and support, you and Mr. Vaughn? A. Yes.

“Q. All three of them? A. Yes, sir.

“Q. What was Mr. Vaughn by vo-' cation? A. He was a farmer.

“Q.. Was he a farmer at the time you married him? A. Yes, sir.

“Q. Did he work the land himself whenever his health permitted? A. Yes, he always wanted to get out.

“Q. Whenever his health permitted he always farmed the places himself, when his health .was not good — ? A. He rented. it. He rent.ed at various times to others.

“Q. Was he a farmer at the time of .his death? A. Well, I suppose if he was living on the farm he would be counted as a farmer because that is all he ever knew to do.

“Q. That is all he had ever done? A. That is what he liked to do.

. “Q. Then did you and Mr. Vaughn live on this forty acre tract ? A. How did you put that ?

“Q. Did you and Mr. .Vaughn have a house on the forty acre tract? A. Oh, yes.

“Q. It was in that house in which you lived? A. Yes.

“Q. But you used all of the land for his and your support throughout the time? A. Yes.

“Q. Was he living in that very same house from' the time you came down here in 1932 until the time of his death? A. Yes.”

From this testimony it might seem to appear that A. L. Vaughn at some time had ■worked or farmed all these tracts, including the 48-acre tract; however, in testifying as •to the particular use of the 48 acres at another place in her testimony (on cross-examination), appellant testified that the 48-acre tract had been continuously rented to tenants prior to and continuously since the time she and Mr." Vaughn came back to Fannin County, and that her husband, A. L. Vaughn, had worked the 40 acres where they lived but that he had not worked the 4Q acres but one year; that he had not worked the 40 acres “More than one year since we came there” (1932), because he was not able to work and that he had rented it out. We think this testimony on cross-examination would clearly show that Mr. Vaughn only worked or cultivated the 40-acre home tract for one year, that he never cultivated or farmed the 48-acre tract in question but that it had been continuously rented out to tenants since and prior to his marriage to appellant. .There is no testimony from-appellant in the record.that she or her husband ever made.any particular use of the 48 acres, such as farming, pasturing, cultivating, cutting firewood, or anything else other than that the 48-acre tract was rented on “third and fourth” and that they used the income and rents to live off.

Zac Vaughn, appellee, also testified to the effect that the only land worked by his father was the 40-acre tract (which he worked in 1932 but not thereafter because his health was bad thereafter), and that the 48-acre tract and the 36-acre tract had been rented out by his father on “third and fourth” and that his father did not pasture stock on the 36-acre and 48-acre tracts.

The will of A. L. Vaughn was introduced in evidence by appellant. We quote from said will as follows:

“I also will and bequeath to my. said wife, Stella Vaughn, for and during her natural life only, the home place consisting of about 40 acres, being the place where I now live, and the household and kitchen furniture located therein.

“At the death of my said wife, Then I will and bequeath the said homestead and such of the household and kitchen furniture as are' still in’ existente, * * * ” (Italics supplied.) • '

Appellant .introduced 'in evidence tax renditions to show that a homestead exemption was claimed on the 48-acre-tract by A. L. Vaughn. However, there was positive testimony from Judge Cunningham, a distinguished attorney of the Bonham bár, who had known Mr. Vaughn for many years, who drew- his' will, who was familiar with his signature, and who compared the genuine signature on the will'with the alleged signatures on the tax renditions, which positive testimony of Judge Cunningham was to the effect that the signatures on the tax rendition sheets were riot made by A. L. Vaughn. Also Zac Vaughn testified that he signed his father’s -name to the -renditions sheets at the request of some tax 'assessor, and that he could not read, did not swear to anything, did not render a homestead or anything else, that the tax assessor just filled it out (without any explanation other than asking him to sign it), saying “he hated to disturb me.”

In Cocke v. Conquest, Tex.Com. App., 120 Tex. 43, 35 S.W.2d 673, 678, it is stated:

“The testimony, a part of which we have quoted, shows beyond dispute that Lee Conquest, the owner, had, since his_ ownership of each parcel of land, personally worked each parcel. These acts 'of use are clearly sufficient to have impressed the homestead character upon each of the parcels. When the homestead character has been impressed upon a 'parcel of land, the authorities are uniform that thereafter a mere temporary leasing thereof, with no intention of abandonment, is insufficient to remove, from the land its homestead character. * *. *

“The framers of our organic' law had no thought of exempting 200 acres of land in the country as a home 'for each family, upon which its members might reside, when they thought proper, but this exemption is only in the event such lands are used for the purpose of a home. The exemption is not of any definite number of acres, but of the' home, and the number of acres is a limitation placed upon that home. As said .by the author of Speer’s Law of Marital Rights in Texas, par. 463: ‘Expressions may be found in some of the decisions which seem to indicate that the proviso, with reference to the use of property for home purposes do not apply to the rural homestead. But the better authorities as well as a proper construction of their language of the section show unmistakably that it does.’ Brooks v. Chatham, 57 Tex. 31.” (Italics supplied.)

In 22 Tex.Jur., pp. 260-261, it is stated:

“The claim of homestead is sustainable where it appears that the parcel was used as an adjunct-of the residence tract for the purpose of growing crops of a pasture for milch cows and work stock. Again, tire.homestead law may be successfully invoked where the evidence shows that the claimant personally worked ■' the land or hired others to do so. The effect of renting, however, is to render the homestead claim unsustainable.” (Citing authorities as follows:) Lasseter v. Blackwell, Tex.Com.App., 227 S.W. 944, affirming Tex.Civ.App., 203 S.W. 619; Paris Grocer Co. v. Pirtle, Tex. Civ.App., 280 S.W. 854; Farmers’ State Bank v. Welch, Tex.Civ.App., 279 S.W. 481; Franklin v. Smith, Tex. Civ.App., 171 S.W. 501, writ of error refused; Wiseman v. Watters, Tex. Civ.App.; 142 S.W. 134; Roberts v. Cawthon, 26 Tex.Civ.App. 477, 63 S. W. 332. (Interpolation ours.)

In Farmers’ National Bank of Seymour v. Coffman, Tex.Civ.App., 79 S.W.2d 905, 907, error refused, a case involving a claimed rural homestead in a segregated tract, the court stated: “That appellee rented the place and used the rent products for ‘feed for teams, hogs and cows and the money for general living expenses’ was no proof of the use of the land for the purposes of a home. Autry v. Reasor, 102 Tex. 123, 108 S.W. 1162, 113 S.W. 748; Lasseter v. Blackwell, Tex.Com.App., 227 S.W. 944.”

The case of Autry v. Reasor, 102 Tex. 123, 108 S.W. 1162, 113 S.W. 748, opinion on rehearing by Chief Justice Gaines, is a leading authority on the homestead questions involved here, has been frequently cited with approval, and has never been overruled by the Supreme Court of this state. We quote from the court’s opinion in this case as follows:

“At the last term of this court opinion was rendered in this case, affirming the judgments of the lower courts. A motion1 for a rehearing has since been filed, in which it is pointed out that we overlooked the findings of fact as found by the trial court and. Court of Civil Appeals. The criticism of the opinion is correct. The trial court distinctly found that ‘John J. Reasor never cultivated the 39 acres of land, or any part of it, by himself or through any one else, but rented the samé from time of the purchase to the time of his death to yearly tenants, who paid for the use of the same the usual rental of one-third and one-fourth of the crop. John J. Reasor occasionally hauled his part of the crop to his- residence on 90 acres, and he used the same for the support of his family. This use of the '39 acres by John J. Reasor, renting it and using the rents for the support of himself and family, made it a part of the homestead.’ There was, however, evidence in the record that Reasor was seen cultivating the land, and following this, and not having in mind the finding of the trial judge, we so stated the facts in our opinion. The evidence to which we refer, while undisputed in a certain sense, is of such a character that we do not feel that the trial judge was bound to give it credence. Therefore his finding upon the facts must be conclusive upon us, and the circumstances of cultivation by the defendant upon which the former opinion relied, in part cannot be considered. Under these circumstances we are of opinion that the facts established by the evidence are not sufficient to show that the 39 acres of land was a part of the homestead of the father of the defendants in error.

“In defining what shall constitute a homestead, section 51 of article 16 of the Constitution [Vernon’s Ann.St.] expressly provides that the rural homestead may be one or more parcels, but at the same time provides ‘that the same shall be. used for the purposes of a home, or as a place to exercise the calling or business of the head of a family.’ It is clear, therefore, we think, before a homestead can be claimed upon land, it mu.st be used for some one ■ purpose of a home, either by cultivating it, us.-ing it directly for the purpose of raising •family supplies, or for cutting firewood and.such like. The alleged fact that the father of the defendants in error cultivated the tract in question, having been found against the defendants in error by the trial judge, we find no evidence that the land was used for the purpose of d home, other than that' the proceeds were probably used in support of the family.” (Italics supplied.)

The case of Autry v. Reasor, supra, was distinguished in the case of Youngblood v. Youngblood, 124 Tex. 184, 76 S.W.2d 759, 760, where contiguous tracts (and not segregated tracts) were involved, wherein the court stated as follows:

“The facts which have been set out make a different case from Autry v. Reasor, 102 Tex. 123, 108 S.W. 1162, 113 S.W. 748. There the tract in controversy was detached from the tract upon which the home was situated. And there the decision finally made was distinctly placed upon the ground that there was ‘no evidence that the land was used for the purpose of a home other than that the proceeds (the rents) were probably used for the support of the family.’

“Under the facts of this case the two tracts were practically and in effect contiguous. The unfenced road between them afforded no substantial barrier to their use as one body of land. It may be assumed in the state of the record that the public had nothing more than a bare right to use the road, with the title in the owner of the adjoining lands. It seems to have been but a country road graded and kept in repair by the county and leading off from the main highway. Since the two tracts are thus in effect at least contiguous, the rule in regard to segregated tracts is not appropriate, especially where, as here, the additional land subsequently acquired was used for the comfort and convenience of the family in like manner as that on which the home was situated.

' “As pointed out in the opinion in Ruhl v. Kauffman & Runge, 65 Tex. 723, 734, contiguity of lots or parcels of land presents a ‘situation * * * decidedly favorable for extending to the outside boundaries the homestead limits,’ and, while the Constitution authorizes lots or parcels of land not contiguous to be united in one homestead, ‘it would naturally require more distinct evidences of such destination in proportion to the inconvenience of using as parts of the same home lots remote from each other.’

“It is, as has been indicated, the actual use of the additional land that controls our conclusion. This is not the ordinary case, of renting land and using the rents in money or in kind for the support of the family. The peculiar facts which have been detailed constitute in our opinion a using of the land ‘for the purposes of a home.’ Article 16; § 51, Constitution of Texas." (Italics supplied.)

The only case that has ever criticized the Autry v. Reasor case, supra, is Woodward v. Sanger Brothers, 5 Cir., 246 F. 777, 779, which is heavily relied upon by appellant. However, the facts in the Federal Court case clearly reveal that the tract in question there had actually been impressed with homestead character by actual cultivation of it by J. P. Woodward (the deceased husband) in 1887, and later by his widow through the children and that it had not been abandoned thereafter. Although the Federal Court case criticises Autry v. Rea-sor, it does definitely cite it as authority to sustain its decision. We quote from Woodward v. Sanger Brothers as follows:

“ ‘That the 59%-acre tract above mentioned was bought on October 1, 1883, and is about two miles from the 100-acre tract. That during the year 1887 a part of same was cultivated by J. P.. Woodward, * * *. After his death * ■ * * all or a part of it was rented out and a part worked by Mrs. Sarah C. Woodward through her children. * * * ’ '

“The .case, of Autry v. Reasor may ■conflict with the conclusion hereinbe-fore expressed, to the effect that a detached tract may be a part of the homestead, although never used in anyway except by growing crops on shares; but it is distinct and direct-authority to sustain the conclusion reached to the effect that the land here in controversy has had impressed upon it the homestead' character. By the agreed 'Statement of facts, Woodward, the owner, had, since his ownership of the land, worked it with his own hands, and after his death it had been worked by Mrs. Woodward through her' children. These acts of use' are very 'much more definite and considerable than those held in the Au-try-Reasor Case sufficient to impress the homestead character.

“It is to be kept in-mind always that, whenever land shall have had impressed upon it thé homestead character, its abandonment as homestead must be- beyond doubt before the homestead protection' will be refused. There must bean unequivocal and absolute intention to abandon; and; in most cases, the inference of-abandonment will not be indulged in the absence of'the aqquisition of a new homestead.” (Italics supplied.) '

The burden of proof upon the issue as to homestead vel non rests upon the ciaimant. "Every fáct that is essential to the existence of the' asserted homestead right must be established by him by evidence which is not of doubtful nature. See the following authorities: 22 Tex.Jur., p. 35; Himes v. Himes, Tex.Giv.App., 55 S.W.2d 181; Sanders v. Crump, Tex.Civ. App., 23 S.W.2d 850; Taylor v. First Nat. Bank of Gilmer, Tex.Civ.App., 288 S.W. 235; Rockwell Brothers & Co. v. Hudgens, 57 Tex.Civ.App. 504, 123 S.W. 185; Mullins v. Looke, 8 Tex.Civ.App. 138, 27 S.W. 926; Roe v. Davis, Tex.Civ.App., 142 S.W. 950, affirmed 106 Tex. 537, 172 S.W. 708; Wade v. First Nat. Bank, Tex.Civ.App., 263 S.W. 654, error dism.; Murphy v. Lewis, Tex.Civ.App., 198 S.W. 1059; M. Kangerga & Bro. v. Willard, Tex.Civ.App., 191 S.W. 195; Gibson & Johnson v. Ward, Tex. Civ.App., 35 S.W.2d 824; Balcomb v. Vasquez, Tex.Civ.App., 241 S.W.2d 650, wr. ref., n. r. e. ’

There is language in Woodward v. Sanger Bros., supra, to the effect “That the one attacking the homestead has the burden of proof,” but no authorities are cited in support of it.. Perhaps what the court had in mind was the line of authorities cited in 22 Texjur., pp. 81 and 82, wherein it is stated: “The property being conceded or shown to have been occupied at an earlier time in circumstances sustaining, the .claim of homestead, the presumption arises that this situation continued' to exist. * * * The párty asserting ■ abandonment of the homestead has the burden of proving same, etc.” Woodward v. Sanger 'Bros., supra, specifically held that the land in question had once been impressed with, a homestead use (cultivation) and that it had not been later abandoned. -If-Woodward v. Sanger Bros., supra, can be construed as holding that where a plaintiff pleads homestead (which is denied by the defendant) that the burden of disproving homestead is on the defendant denying it, then we are not willing to agree with-it as such a holding would be contrary to the long list of Texas authorities cited aboye on burden of proof.

In the case at bar plaintiff pleaded homestead, defendant -denied it generally and specially (except as to the 40-acre home). Defendant did not concede that the 48 acres was homestead. The .issue was not abandonment but whether homestead had ever been impressed by use; upon the 48 acres. If homestead had ever been impressed on the 48 acres, we agree that it would have continued until abandoned. But the issue was whether the -48 acres had ever been impressed by a homestead -use and the burden of proof on this issue clearly devolved upon plaintiff who was alleging homestead.

We do not believe that the mere collection and use of rents from the 48 acres (without showing prior impressment of a homestead use by some use recognized by the Supreme Court of Texas) would sustain homestead for plaintiff in this cas.e. Besides plaintiff is the only witness who testified that she and her husband used the rents and revenues from the- property. • She was an interested witness and it has been frequently held that the testimony of an interested" witness even though' uncontradicted only raises an issue of fact,‘which the court or jury trying the case has a right to disbelieve. In Himes v. Himes, 55 S.W.2d 186, it is stated:

“Moreover, the only testimony in the record offered in support of defendant’s plea of homestead is that of defendant himself and wife, and both are evidently highly interested witnesses. It has been held,frequently that the testimony of. interested witnesses, even though :uncontradicted, only raises. an issue of fact for the jury. See Stone v. City of Wylie, Tex.Com.App., 34 S.W.2d 842, 845; Krueger v. Bankers Lloyds, Tex. Civ.App., 45 S.W.2d 363; Wade v. First Nat. Bank, Tex.Civ.App., 263 S.W. 654, 656, writ dismissed.” Also see Autry v. Reasor,, supra; Funderburk v. Dofflemeyer, Tex.Civ.App., 234 S.W.2d 889, error ref.; Kamp v. Hargris Building Co., Tex.Civ.App., 238 S.W.2d 277, ref., n. r. e.; Girlsberg v. Selbest Dress, Inc., Tex.Civ.App., 238 S.W.2d 621, ref., n. r. e. (Italics supplied.)

The case of Johnson v. Russell, Tex.Civ. App., 220 S.W. 352, also holds that where a party states that a tract of land is Ms homestead it only amounts to a conclusion, and the burden is not met unless there is other evidence showing actual use for homestead purposes.

Also the will of A. L. Vaiighn introduced in evidence by appellant was not helpful to her on the issue of homestead, as the testator clearly referred to the 40 acres as “the home” and “the homestead.” Also' the evidence, with respect to the tax renditions was conflicting and appellant can not derive any. help from the tax renditions-in view of the trial court’s finding against her on the homestead question on the 48 acres.

, The burden of proof in this case was on-'appellant to prove that the 48-acre tract was homestead and she failed to prove it to the satisfaction of the trial judge who was the trier.of the facts. We hold that the finding of, the trial court that the 48 acres was not homestead is a finding .that we are-not authorized to disturb under this record. Appellant’s points 1 .and 2 are overruled.

By point 3 appellant contends alternatively that if the 48 acres is no part of the homestead, then that she is entitled to the 1953 rents on the basis that such crops were matured on the death of Mr. Vaughn. The record .shows that the crops in question were not mature at the time of death in July, 1953, and that the crops were not severed and harvested until in the fall of 1953. The point is overruled. 13 Tex.Jur,, pp. 5, 11; Schaefer v. First Nat. Bank, Tex.Civ. App., 189 S.W. 556.

' We have carefully considered appellant’s points 4 to 8 inclusive, deem them without merit, and same are overruled.

By point 9 appellant complains of the action of the trial court in taxing one-half of the court costs in the trial court against her. The trial court stated in the judgment: “It appearing to the court that all parties hereto were acting in good faith and each party having failed in part' to' sustain his respective claims and position, it is ordered, adjudged, and decreed that all- costs herein be, and the same are hereby, taxed one-haíf against the plaintiff and one-half against the defendant, as such independent executor of the estate of A. L. Vaughn, deceased * * '

In McCurdy v. Harry L. Edwards Drilling Co., Tex.Civ.App.; 198 S.W.2d 609, 611, the trial court stated in his judgment: “That this is an accounting case in which both sides" have failed in part to sustain their' position, and half of the court costs are adjudged against each side.” In'6veri-ruling appellant’s point with" respect to this matter the appellate court stated:

“Point VIII complains of the court’s judgment dividing the costs. The court gave upon the face of the record what he deemed good cause for adjudging half the costs against each party. Rule 141, Texas Rules of Civil Procedure, which is old Article 2066, Vernon’s Anno.Tex.Stats., with minor textual changes, provides: ‘The court may, for good cause; to be stated on the record, adjudge the costs otherwise than as provided by law or these rules.’ The rule vests in the court a sound judicial discretion to determine what is! good cause for dividing the costs between the 'parties. Pendery v. Panhandle Refining Co., Tex.Civ.App., 169 S.W.2d 766, writ refused. No abuse of the court’s discretion ⅛ adjudging the costs is made to appear. Point VIII is overruled.”

We hold that this record does not show an abuse of discretion on the part of the trial court in taxing the court costs equally against the parties. Appellant’s point 9 is overruled.

The judgment of the trial court is af-’ firmed.

Affirmed.

HALL, C. J., concurs. DAVIS, J., dissents.