DocketNumber： No. 5541
Citation Numbers： 171 S.W.2d 156, 1943 Tex. App. LEXIS 322
Judges： Pitts, Stokes
Filed Date： 4/12/1943
Status： Precedential
Modified Date： 11/14/2024
The record shows that on October 4, 1926, appellant, Mary Phillips Stone, then a feme sole whose maiden name was Mary Esther Phillips, executed, together with her mother, Katherine Phillips, a renewal note in the sum of $632.91 with interest, payable to J. M. Cordell in twenty-four monthly installments at $25 per month on the 4th day of each month beginning November 4, 1926, with the last installment of $32.91 due and payable on November 4, 1928; that said note was secured by a deed of trust executed by the same parties on all of Lot 6 in Block 93 of the First Railroad Addition to the town of Ballinger, Runnels County, Texas; that on April 21, 1928 appellant, Mary Esther Phillips, was married to Aaron A. Stone; that on July 14, 1930, the note and deed of trust were transferred and assigned to appellee, John Phillips, by J. M. Cordell; that Katherine Phillips died intestate on May 7, 1941; that thereafter appel-lee sued appellants, Mary Phillips Stone and her husband, Aaron Stone, in the District Court of Runnels County for amount of the note with interest and attorneys’ fees and to foreclose the lien on the land described in the deed of trust.
Donald Phillips intervened in the case claiming certain improvements placed by him on the land above described for which he obtained judgment in the trial court, from which judgment no appeal was perfected and about which no complaint is made by appellants or appellee.
Appellants answered to the effect that the final payment on said note was more than fourteen years past due and that same, together with the deed of trust, were therefore barred by the statute of limitation, in response to which appellee filed a denial and alleged that Mary Phillips Stone was a resident and citizen of Texas at the time the note and deed were executed and that she was a resident and citizen of Texas continuously until the date of the trial but that she had been continuously out of the State since appellee’s cause of action had accrued and thus invoked a statutory exception to the plea of limitation.
At the close of the evidence both appellants and appellee moved the trial court for a peremptory instruction, appellee on the grounds that the undisputed testimony showed appellant, Mary Phillips Stone, owed the amount of the note and that the debt and lien were not barred by the statute of limitation, and appellants on the ground that the note and lien were barred by the statute of limitation. The trial court overruled appellants’ motion, dismissed the jury and entered judgment for appelle.e for the sum of $1,450.73, the amount of the note with interest and attorneys’ fees, and a foreclosure of the deed of trust lien, from which áppellants perfected their appeal to the Court of Civil Appeals of the Third Supreme Judicial District at Austin, and the same was transferred to this Court by the Supreme Court of Texas.
It was agreed in the trial court by the parties that the note sued on was lost but that appellee owned the note with an unpaid balance of $1,450.73 as principal, interest and attorneys’ fees.
Appellants state that the' sole question to be decided on this appeal is the question of the statute of limitation on the note and deed of trust lien based on the question of residence or domicile of the appellant, Mary Phillips Stone, with which statement appellee agrees. Appellants contend in their brief only that Mary Phillips Stone, nee Mary Esther Phillips, was a non-resident of Texas when the note and deed of trust were executed and for a period of some thirteen years thereafter, while ap-pellee contends that Mary Phillips Stone, nee Mary Esther Phillips, was a citizen of Texas and claimed Texas as her home from the date of her birth on April 15, 1886, up to and including the date, of the trial of the case in the trial court on June 3, 1942, but that she was absent from the State of Texas during the entire period of limitation claimed except for about one year, immediately preceding the trial of the case.
It is a well settled rule of law that a non-resident of the State of Texas does not come within the exception of a statutory limitation plea and that limitation may run in his favor. 28 Tex.Jur. 234, par.
Appellant, Mary Phillips Stone, testified on direct examination, among other things, that she lived in Brownwood, Texas from 1918 to 1924; that prior to that time she lived at Ballinger, Runnels County, Texas, where she had served as district clerk for 8 years ; that on July 30, 1924, she left Texas for Washington, D. C., where she lived until February, 1933, when she moved to Maryland, near Washington, but that she never did abandon her home in Texas and came back to Texas on May 9, 1941, to attend the funeral of her mother, and the record shows she has lived in Texas since that date.
On cross-examination appellant, Mary Phillips Stone, testified as follows:
“Q. You said that you had never abandoned your home in Texas? A. No, sir.
“Q. Then you did testify to that ? A. I never abandoned it.
“Q. You mean to tell the jury that you considered yourself a citizen of the State of Texas all the time? A. Absolutely, which can be proven.
“Q. Now, during the time you were in Washington you claimed your home as being in Texas? A. Absolutely.
“Q. You claimed citizenship in the State of Texas? A. Absolutely.
“Q. You never claimed your citizenship was in Maryland, or Washington? A. No, sir.
"Q. You claimed the right to vote if you had been here? A. Absolutely.
“Q. If you had been here you would have voted. Is that right? A. I voted here when I was in Brownwood.
“Q. I am sure you did. And, you would have voted here while you were living in Washington if you had happened to be here on election day? A. Yes, sir.
“Q. You were temporarily in Washington, and temporarily in Maryland all that time you were gone? A. I guess that is what you would call it.
“Q.' You were born in Texas, I guess? At Ballinger? A. No, sir, in Kaufman County.
“Q. About how old were you when you moved to Ballinger? A. I was born in 1886, April 15th, and we moved to Ballin-ger in 1905 on Thanksgiving day.
“Q. And you lived here until you went to Brownwood temporarily in 1920? A. 1918.
“Q. This was your home from 1905 until 1918; your real home? A. I personally resided here.
“Q. And this is really your home until now, for that matter? A. Yes, sir.
“Q. You resided here and had your home here until 1918? A. Yes, sir.
“Q. And in 1918 you went to Brown-wood? A. Stayed there until 1924.
“Q. You lived in Brownwood about six years but this was still your home here in Ballinger? A. Yes.
“Q. And from 1924 practically until sometime this year you were actually residing practically all the time in Washington and Maryland, but this was still your home? A. I came here a year ago and have been here a year; I have been here a year May 9th.
“Q. And from 1924 until May of last year you were temporarily in Washington working there; Washington and then Maryland but this was still your home ? A. Yes, sir.
“Q. And you considered yourself a citizen of Texas all that time? A. Yes, sir.
“Q. And still do? A. Yes, sir.
“Q. You do that notwithstanding your marriage? A. I married in Virginia.
“Q. Where is your husband living now? A. In Maryland.
“Q. And works in Washington? A. Yes, sir; yes, he works in Washington.”
The record discloses that appellant, Mary Phillips Stone, testified that she visited her mother in Texas about four years before her death.
Appellants contend that in spite of her testimony Mary Phillips Stone was a resident of Washington, D. C. long before her marriage in 1928 and after her marriage she resided in Washington, D. C. until 1933 and in the state of Maryland after 1933; that the domicile of the husband controls the domicile of the wife; that the husband has the right to establish the residence of the family and that the limitation on the note and deed of trust began to run on November 4, 1928, the date of maturity, and the note and deed were therefore barred by limitation by the date the suit was filed in 1942.
The record discloses that Aaron A. Stone, husband of Mary Phillips Stone, lived in Maryland and worked in Washington at the time of the trial of the case in the trial court but the record does not disclose what place Aaron A. Stone claimed
The intention of a person has much to do with his legal residence or domicile.
Webster’s New International Dictionary defines “domicile” in law as a “residence at a particular place accompanied with an intention to remain there for an unlimited time. A man can have but one domicile for one and the same purpose at any one time, though he may have numerous places of residence.”
The New Century Dictionary defines the word “domicile” in law as “the place where one has a home or permanent residence, to which, if absent, he intends to return.”
Words and Phrases, Permanent Edition, vol. 13, page 271, says: “‘Domicile’ of a person is a legal home, and every person has a domicile which may be his then residence or otherwise, depending on all circumstances.”
Corpus Juris Secundum, vol. 28, Domicile, § 1 page 1, defines “domicile” as follows : “Domicile is the legal conception of home, and the relation created by law between an individual and a particular locality or country. The term has been variously defined, the definitions agreeing substantially on the elements of a true, fixed home, habitation, or abode, where a person intends to remain permanently or indefinitely, and to which, whenever absent, he intends to return”.
The same text and volume, § 2, page 5, further states “While ‘domicile’ and ‘residence’ are frequently used synonymously, they are not, in precise usage, convertible terms; ‘domicile’ is a larger term, of more extensive signification, while ‘residence’ is of a more temporary character. One may have his residence in one place while his domicile is in another, and may have more than one residence at the same time, but only one domicile.”
The trial court found as a matter of law in his judgment that the note and lien sued on were not barred by the statute of limitation and thus, in effect, found that appellant, Mary Phillips Stone, was a legal resident of Texas and held her domicile in Texas and that limitation did not run because of her absence from the State of Texas.
Judgment was rendered by the trial court only against appellant, Mary Phillips Stone. The question before this Court is whether or not the evidence conclusively supports the judgment of the trial court.
We find that appellant, Mary Phillips Stone, positively testified against her interest that she was a native Texan and never did abandon her Texas home; that she was temporarily away working in Washington; that she would have voted in Texas while living in Washington and Maryland if she had been here; that she did return to Texas on May 9, 1941, and had since been living in Texas for more ■than a year at the time of the trial on June 3, 1942. None of these statements were contradicted and no evidence was offered to refute any of them. It seems to us that this woman, who had served eight years as District Clerk of Runnels County, Texas, knew what she was talking about.
There is no testimony showing the residence or domicile of her husband, Aaron A. Stone, at any time except “now”, the day of the trial. Mary Phillips Stone testified that he is “now” living in Maryland and working in Washington. There is no evidence showing that Aaron A. Stone designated any place as the family residence at any time. There is also no evidence that he ever established a home at any place at any time or that he and his wife ever resided together in such a home.
There is no question but what Mary Phillips Stone at one time had her residence in Texas and that she had a right to choose the place of her legal residence and domicile until she was married, at least, and that she did choose Texas as such and there is no evidence of any change of her legal residence or domicile at any time.
15 Tex.Jur. 719, par. 8, says: “A domicile, once existing, is presumed to be retained until shown otherwise” and a number of other authorities are cited in support of this rule. 17 Tex.Jur. 324, par. 97, says: “The burden of proof is on a party who seeks to overcome a presumption of fact.” Such was not done or attempted in this case.
The evidence shows conclusively that appellant, Mary Phillips Stone, was outside the State of Texas after the date the note in question accrued until May 9, 1941, when she returned to Texas, and has since lived here for more than a year. The fact that she returned and has lived in Texas for more than a year seems to support all of her testimony to the effect that Texas has
We think the evidence conclusively supports the judgment of the trial court and that he therefore correctly rendered judgment for appellee. Article 5537, Revised Civil Statutes; 28 Tex.Jur. page 229, par. 129, page 231, par. 131, page 232, par. 132, page 233, par. 133 and page 234, par. 135; Koethe v. Huggins, Tex.Civ.App., 271 S.W. 143; Watts v. McCloud, Tex.Civ. App., 205 S.W. 381; Robin v. Ely & Walker Dry Goods Co., Tex.Civ.App., 137 S.W. 2d 164; Bcmis v. Ward, 37 Tex.Civ.App. 481, 84 S.W. 291.
The judgment of the trial court is therefore affirmed.