Ewing v. Riley , 246 S.W. 94 ( 1922 )

On Motion for Rehearing.

In the original opinion in this cause it was stated Riley at no time actually resided upon the land in controversy, or upon any property owned by him, but on the contrary, had his actual dwelling place upon other premises which he leased for that purpose from others. Appellee vigorously questions this finding of fact.

The tract of land seized under a writ of attachment, and upon which Riley claimed the homestead exemption, consists of blocks 9 to 15, inclusive, of Ewing’s addition to Mc-Allen, which he had purchased from Ewing and paid for in cash. There were no improvements on this property. At the same time he purchased these blocks he also pur-cased block 16, adjoining, which he did not pay for, but gave his note therefor, to secure which the vendor’s lien was retained by Ewing against that block. There was a dwelling house on this block. It was expressly stipulated in the deed conveying block 16 that Ewing, the vendor, should retain possession of the premises until the note was fully paid. This note was not paid by Riley, the lien was foreclosed, the land sold, and accordingly Riley never went into possession of block 16 under or by virtue of the deed to him. However, Riley entered into a supplemental contract with Ewing, the vendor, who was still in possession, whereby he leased block 16 and the dwelling thereon, for which he agreed to pay a rental of $50 a month. Under this lease contract Riley moved with his family into the dwelling on September 11, 1920. It was further expressly stipulated in the contract that Riley “recognizes” Ewing as his landlord, and that he was to occupy the premises only as a tenant of Ewing, and that the period covered hy the lease should terminate on January 11,1921, at which time Riley agreed to surrender possession hack to Ewing. The record does not show when Riley surrendered possession under his lease, hut it does affirmatively show that Ewing foreclosed his lien upon block 16, which was sold to a third party, and Riley’s assignable interest ’ therein was thus entirely concluded when this sale occurred is not shown. It is not even shown whether it occurred before or after the attachment levy upon blocks 9 to 15. It was not shown what new arrangement was made by the parties at the end of the lease period, but the record warrants the assumption that Riley at no time occupied the premises on block 16 under his deed, but only as a tenant in virtue of his lease thereof from Ewing. It was upon ..this state of the record that we based the statement in the original opinion that Ewing never resided upon the premises' in controversy, or upon any land owned by him,, but, on the contrary, actually had his domicile on premises not owned by him, but rented from others. The issue is. the controlling one in this case.

The fact that Riley did not actually dwell upon the premises here in controversy did not of itself serve to exclude those premises from the homestead exemption, although appellee seems to place such construction upon our holding in the original opinion. If the home site happens to be situated on a tract segregated from the balance of the land on which the exemption is claimed, that fact does not of itself affect the homestead claim, so long as the two tracts are together used for homestead purposes. And so, if Riley actually had such interest in block 16, on which he resided, as would support his claim for exemption, and from there operated his farm on blocks 9 to 15, and claimed and utilized all as his homestead, then the exemption would eover all, regardless of the segregation. The only question presented here is whether or not Riley had such interest in block 16, the home site, as would support his claim, of exemption.

As has been shown, Riley never resided on block 16 as the purchaser or owner thereof, but only as a tenant paying a monthly rental therefor, and subject to eviction at any time he defaulted in any of the several obligations imposed upon him in the lease contract. Ordinarily, as the purchaser of the property under an executory contract, he could have gone into possession and exercised dominion over the premises for all purposes, subject only to the vendor’s equitable title. But, under the express terms of the contract of purchase, his right of entry was postponed, to ripen only upon his payment in full of the purchase price, a condition which !he never performed. Of ' course, if under his contract of purchase as distinguished from his lease contract he had gone into possession for the purpose of making the premises his home site, the fact that the lien to secure the purchase price was out-standirig would not have impaired or affected the homestead character thus sought to be impressed upon the premises, and, in the case of a rural homestead, this character would automatically extend to all the land used by the claimant as a part of, or incident to, the family use, so long as the whole did not exceed 200 acres. But he never obtained that character of possession.

We do not think Riley’s peculiar possession and occupancy of block 16 was such as would enable him in virtue thereof to impress the homestead character upon the adjoining blocks 9 to 15, which he purchased solely as a speculation, and which he never intended to improve or occupy for homestead purposes. Franklin v. Coffee, 18 Tex. 413, 70 Am. Dec. 292; Hampton v. Gilliland, 23 Tex. Civ. App. 87, 56 S. W. 572; Loessin v. Washington, 23 Tex. Civ. App. 515, 57 S. W. 990; Roberts v. Trout, 13 Tex. Civ. App. 70, 35 S. W. 323. We do not, think it was intended under the homestead provision to exempt any. land, whether attached to the home site or not, unless it was the intention of the one claiming the exemption to actually make and use such land as a part of the homestead premises. In this case no such intention was shown to exist in Riley with reference to blocks 9 to 15, and in our opinion he was not entitled to the exemption upon those blocks. ,

The motions for rehearing are overruled.