Crowder v. Union Nat. Bank of Houston , 264 S.W. 791 ( 1922 )

I was not present when this appeal was originally decided, and, upon examination of the record in considering appellee's motion for a rehearing, I cannot agree with the majority of the court in the conclusion expressed in the original opinion, nor in the disposition of the motion for rehearing.

I think the facts stated in the opinion of the majority, all of which are undisputed, conclusively show that the 80 acres of land in controversy in this suit was not the homestead of appellants and was not impressed with a homestead right in appellants at the time the attachment, under foreclosure of which appellee acquired title, was levied.

It may be conceded, as held by the majority, that the 160 acres of land, of which the 80 acres in controversy is a part, and which was purchased by the appellants with the intention of making it their homestead, was impressed with a homestead character and entitled to protection as such so long as the acts and declarations of appellants were corroborative of, and consistent with, their claimed intention to make their home thereon, but this 160 acres, not being the actual homestead of appellants prior to the levy of the attachment, the 80 acres in controversy ceased to be entitled to protection as a homestead, when by their acts and declaration appellants repudiated and belied any intention they may have once had of making it their homestead. The right to acquire and hold property for homestead purposes and secure for it the protection that the Constitution throws around the home of a family without occupying the property, is firmly established by our decisions; but the limitations of this right, or rather the circumstances and conditions under which it is recognized and enforced by the courts, are also well established.

The rule, in a majority of the states, requires actual occupation of property as a home, as a prerequisite to impressing it with the homestead character. The liberalization of this rule by our courts was because of the obvious fact that otherwise one who was indebted or without means to at once build a home upon property acquired with the intention of making a home there, or one who was prevented by some reasonable cause from at once occupying property purchased for a home, might never be able to secure a home for a dependent family, and the benign purposes of the homestead provision of our Constitution would thus be prevented of full accomplishment. Franklin v. Coffee, 18 Tex. 413, 70 Am.Dec. 292; Stone v. Darnell, 20 Tex. 11; Gardner v. Douglass, 64 Tex. 76; Swope v. Stantzenberger, 59 Tex. 390; Archibald v. Jacobs, 69 Tex. 251, 6 S.W. 177.

In discussing this question and stating the circumstances under which property, not occupied as a home, will be given homestead protection our Supreme Court in the case of Cameron v. Gebhard, 85 Tex. 616, 22 S.W. 1035,34 Am. St. Rep. 832, says:

"Intention alone cannot give a homestead right; but it is at the same time equally true that all other things combined cannot give it without the intention to dedicate it to the uses of a home. Valuable and costly improvements, coupled with long-continued possession, without the existence of a bona fide intention to make it a home, will not make it such. But the placing upon the premises unhewn logs for the purpose of erecting thereon the humblest cabin, with a bona fide intention to occupy as soon as the cabin can be built, secures the right.

"From these decisions it is apparent that intention is almost the only thing that may not be dispensed with in some state of case; and it follows that this intention in good faith to occupy is the prime factor in securing the benefits of the exemption. Preparation — that is, such acts as manifest this intention — is but the corroborating witness to the declaration of intention, the safeguard against fraud, and an assurance of the bona fides of the declared intention of the party."

In the early case of Franklin v. Coffee, supra, in speaking of the character of the preparations and acts of the party necessary to make effective his declared intention to make the property his home, the court says that they must be of such character as "to manifest beyond a doubt" the intention to reside upon the place as a home.

Applying these well-settled rules to the undisputed facts of this case, it seems clear to me that the 80 acres in controversy was not impressed with a homestead character at the time the attachment was levied. Appellants had never lived on the property; but, conceding that the 160 acres was bought with the intention of making it their homestead, its homestead character, without its occupation as such, could continue no longer than their intention to so use it continued.

Can reasonable minds differ in the conclusion that the acts of appellants in conveying the 160 acres to Miller, and having him convey the 80 acres in controversy to the appellant H. B. Crowder, and the remaining 80 acres to Mrs. Crowder, with the avowed purpose of dividing their property in contemplation of a divorce, suit for which was instituted by Mrs. Crowder, and the conveyance by H. B. Crowder of the 80 acres in controversy to his son, was not only not corroborative of an intention to make the 160 acres the family homestead, but conclusively rebuts any such intention. The subsequent acts of the appellants, as shown in detail in the opinion of the majority, are equally inconsistent with any intention on their part to make the property their homestead.

The testimony of appellant H. B. Crowder that he thought all the time that his wife would abandon her suit for divorce, and that they would finally make their home on the 160 acres, is of no importance. His claimed intention to make his home on the property, after its partition and the filing of the suit for divorce by his wife, was conditional upon a future reconciliation with Mrs. Crowder. It seems clear to me that such conditional intention, which is contradicted and negatived by his every act in relation to the property, could not impress it with a homestead character.

An issue of a homestead right, in H. B. Crowder in the 80 acres in controversy, separate and apart from the homestead rights of both appellants in the 160 acres, cannot possibly arise upon the facts of this case. If any such issue could be made upon these facts, it has been foreclosed by the judgment in the attachment suit in which H. B. Crowder was a party.

It is true, as argued by appellants, that the issue of estoppel is not in this case, appellee not having advanced its money on the faith of the 80 acres of land being free of homestead claim; but the integrity of the homestead exemption is involved, and when the evidence shows that the claimed secret intention to make the property a homestead is not only not corroborated by acts of the parties showing such intention and thus safeguarding against fraud, but, as we have before said, is conclusively contradicted, it is the duty of the courts to disregard such claimed intention.

The appellee bank was entitled to have its attachment lien foreclosed and to reap the benefit of that foreclosure. It may be that appellants need the 80 acres as a homestead more than the bank needs it, but they could only acquire it in the manner sanctioned by the law, and, not having done this, the courts cannot give it to them.

I think the trial court was correct in holding that plaintiff was entitled to an instructed verdict in its favor, and that appellee's motion should be granted, and the judgment of the trial court affirmed.