Newton v. Calhoun , 68 Tex. 451 ( 1887 )

Stayton, Associate Justice.

That the property in controversy was the homestead of the appellees for many years prior to the time they improved the lot on which the house stands in which they actually resided at the time this case was tried, can not be denied, for with their family they actually lived in the house and used the lot and those contiguous to it for the purposes of a home.

It was a question of fact for the determination of the court below whether the use which the appellees had made of lot five since they have actually resided on lot seven, was such as- to clearly indicate an intention no more to use lot five for the purpose of a home; and whether, in fact, lot five had not at all times been to some extent used for the. purposes of a home. The simple fact that the houses on lot five had been rented was not sufficient to divest that lot of its homestead character. The necessities of the family may have been such as to induce its head, temporarily, to rent to others the houses on lot five without any intention permanently to use it only for the purpose of renting. Without disregarding the evidence in the case the court below may have come to the conclusion that this was true, and from his findings we infer did so.

The Constitution guards the homestead from loss by a mere temporary renting. If buildings not adapted to the purposes of a home had been erected on lot five, and such disposition made of them and the lot as was inconsistent with a continued intention again to use the lot for thé purposes of a home, a different case would be .presented. Lots five, six and seven were for a long time evidently the homestead of the family, and before either of them, while they continue under one common ownership will cease to be a part of it, it must be applied to a use inconsistent with the uses for which the homestead is protected—to uses which clearly show an intention no longer to use it for the,purposes of a home. The court below was justified in holding that no such use was- made of the lot; that there was no intention to abandon it as a part of the home, and to rent it permanently; that it was, in fact and in law, a part of the homestead of the family.

Opinion delivered June 10, 1887.

There was evidence, slight though it may have been, from which the court was authorized to find that, while the houses on the lot were rented to others, the lot was more or less used all the time by the appellees and their family for home purposes.

That the appellees may at one time have thought of selling the lot would have but slight bearing on the question of abandonment. They might have desired to sell the three lots, but unless they did so, this desire could not affect the homestead right so long as they continued to use them for the purposes of a home; and if with a desire to sell it they temporarily rented it, intending to return to it if they could not make a sale to suit them, then the temporary renting would not affect their homestead right. It appears, however, from the evidence that the intention to sell lot five had been relinquished.

The court below, no doubt, gave to the evidence of a desire at one time to sell lot five, such weight as he thought it entitled to; and gave no weight in disposing -of the case to the fact that the lot was the separate property Of Mrs. Calhoun.

The sole ground on which there can be any pretense that the judgment is erroneous is that the evidence required a different finding by the court; but after a careful examination of all the evidence, we are not prepared to say that it so preponderated in favor of the proposition asserted by the appellant as to justify this court, on that ground, to set the finding aside, nor that it did not justify the finding made by the court below.

The judgment will therefore be affirmed.

Affirmed.