H. P. Drought & Co. v. Stallworth , 45 Tex. Civ. App. 159 ( 1907 )

This was an action of trespass to try title, brought in the court below by appellants against appellees and H. A. Stallworth, J. A. Martin and J. A. Martin, Jr. Appellants took judgment in the court below by default against the three last named defendants. Upon a trial between appellants and appellees before the court without a jury, judgment was rendered in favor of appellees. Appellants claimed title to the land in controversy by virtue of a sale under an execution on a judgment in their favor against appellees, and appellees contested such sale upon the ground that the property constituted their homestead at the time of the levy and sale.

Appellants' first and second assignments of error assail the conclusion of law of the court below to the effect that appellees constituted a family within the meaning of the constitution and exemption statutes of this State, upon the ground that the evidence did not justify such conclusion of law. We do not think this contention of appellants sound in view of the decisions of the higher courts of this State upon the question involved. We are of opinion that the testimony embraced in the record clearly shows such a social status existing between appellees and moral, if not legal, obligation upon the part of the brother to support and take care of the sister, and corresponding state of dependence on her part for such support and care, as warranted the conclusion of law of which complaint is made. (American Nat. Bank v. Cruger, 71 S.W. Rep., 784; Smith v. Wright, 13 Texas Civ. App. 485[13 Tex. Civ. App. 485]; Barry v. Hale, 21 S.W. Rep., 784; Roco v. Green, 50 Tex. 488-491.)

Appellants' third and fourth assignments of error contend that the court below erred in holding that the two houses erected by appellees on the west lot were erected to be only temporarily rented, and that the evidence did not establish a segregation and abandonment of said lot as a portion of the homestead, and in not holding that the two houses erected on said lot were erected to be used as rent property and not as a part of the homestead; and that the evidence showed a segregation and abandonment of said lot as a portion of the homestead, and that same was therefore subject to forced sale. Where there is only a temporary renting of a part of the homestead and no segregation made or intended, it does not constitute a divestiture of the homestead character as to such portion. (Shook v. Shook, 50 S.W. Rep., 731; Newton v. Calhoun,68 Tex. 451; Rollins v. O'Farrell, 77 Tex. 91 [77 Tex. 91].) When property has been impressed with the homestead character, it will be presumed to so continue until its use as such has been discontinued with the intention not to again use it as a home. (Archibald v. Jacobs, 69 Tex. 251 [69 Tex. 251].) And an entire block of land used for purposes for which a homestead is given, is protected as homestead until the whole or a part is used so as to evidence intent to no longer use it as a homestead (Wynne v. Hudson,66 Tex. 10). And whether property once a homestead has been permanently abandoned for homestead purposes is a question of fact in solving which the jury or court trying the case must consider the uses to which it has been subjected, the character of improvements made, the effect and object of temporary renting and the intention to preserve it as a home, as indicated by the acts of the party asserting homestead rights in such property. (Rollins v. O'Farrell, supra.) While the testimony on the issue as to the renting of the two houses being temporary is somewhat meager, we do not think we would be justified in holding that the finding of the court below to the effect that such renting was temporary is without evidence to support it. The testimony reasonably shows that appellees, during the time the houses were rented, used a portion of the west lot not occupied by the houses for their chickens, and, during the time they had a horse and cow, or either, for a lot and pasture for same, and in renting the houses they invariably reserved the right to use the lots for the above purposes. Appellee J. M. Stallworth testified that while he built the two houses on the west lot to rent, he never surrendered their full control to anyone, and that he was really sorry afterwards that he put them there; that he had never abandoned the idea of using any part of the west lot upon which the rent houses were situated as a home, and that he had refused to sell that lot although he had had liberal offers from parties to purchase same; that he refused to sell said lot because its sale and separation from his other lot would ruin his place as a home. In other words, that its sale and segregation from his other lot would deprive him of sufficient land upon which to make his home convenient and comfortable. We think this testimony tends to support the idea that the renting was only temporary. This witness's testimony also shows that, during a portion of the time, these houses were occupied by families who did his sister's washing and other services for the family, presumably, in payment for their use, which tends to show a home or family use of the houses, as contradistinguished from the independent use of them by renters.

Appellants' fifth assignment of error is disposed of by what is said in the disposition of their third and fourth assignments. We are of opinion that the testimony, as shown by the record, supports the findings of fact of the court below, and that its conclusions of law based thereon are correct.

The judgment of the court below is affirmed.

Affirmed.

Writ of error refused.