Moore v. Monnig Dry Goods Co.

J. A. Moore has appealed from a judgment in favor of the Monnig Dry Goods Company foreclosing a mortgage lien on 269 acres of land in Titus county, consisting of three separate tracts, one being 156 acres out of the Eli Belcher survey. The only defense urged by Moore against the foreclosure sought was the plea of homestead to the 156-acre tract.

The trial was before the court without the aid of a jury. The evidence shows that at the time the mortgage was executed appellant owned several tracts of land in Titus county which aggregated about 1,200 acres. One of those tracts consisted of 15 acres situated near the town of Talco upon which was the residence in which Moore and his family resided, and this tract was separated from all the other tracts and was not included in the mortgage. On the contrary, that tract, together with another tract called the McElroy tract of 178 acres, about a mile distant, was expressly designated as the homestead of Moore in the mortgage given to the appellee, and the land in controversy consisted of other and different tracts. Appellant stresses particularly the case of Texas Land Loan Co. v. Blalock, 76 Tex. 87, 13 S.W. 12. In that case the mortgage sought to be foreclosed was given upon a tract of land upon which the mortgagor actually resided with his family, and the instrument contained a designation of the homestead upon another tract which was not then being used for homestead purposes. Briefly stated, the decision was that, notwithstanding the designation of the homestead contained in the mortgage, he was chargeable with notice of the homestead character of the property mortgaged by reason of the fact that it was in the actual use and occupancy of the family as a homestead and place of residence, in other words, that such actual occupancy and use of the property mortgaged as a homestead made it the homestead of the family as a matter of law, and the mortgagee could not shut his eyes to the facts which so impressed the property with the homestead character. That decision is not applicable to the facts in the present case, in that Moore's residence where he and his family resided was upon the 15-acre tract mentioned above. The 156-acre tract of land out of the Eli Belcher survey claimed by him to be exempt was situated a mile or so distant from the 15-acre tract. He also owned the other tract of 178 acres designated as the McElroy tract, situated about one mile from the 15-acre tract upon which he resided.

Moore testified that at the time, in 1914, when he executed the mortgage in controversy, he owned about 1,200 acres of land in all, and that he was engaged in the mercantile business in the town of Talco, where he owned a lot which he did not claim as a business homestead. He further testified as follows:

"At the time the deed of trust was given, I was in the mercantile business. That was during 1914 that I was in the mercantile business. I wasn't giving practically all of my personal attention to the mercantile business at that time; I was engaged in farming, too. I did a lot of farming by hired help. I rented some of the places. During 1914 I worked the Eli Belcher land personally and pastured the McElroy land, and about the same way in 1915. In 1914, I worked this land here that I designated as my homestead and was living on the 15 acres. The A. V. McElroy place I rented out and pastured the pasture land myself. I used the pasture land whenever it was necessary and rented the other part of it on half shares. From time to time I cultivated the tillable land out of about 1,200 acres. Sometimes I would cultivate one place a year and sometimes I would rent it; but I tried to keep it in cultivation and tried to keep it moving all the time."

In addition to that testimony, the attorney for appellee, who acted for the mortgagee in taking the mortgage, testified to declarations made to him by Moore at the time concerning the ownership of an aggregate of about 1,200 acres of land and of the uses he had been making of the same.

We think it clear that all of that testimony was admissible, and that the same, together with the other facts and circumstances recited above, constituted proof sufficient to sustain the trial judge's finding that the Eli Belcher tract of 156 acres, covered by the mortgage, was no part of the homestead of Moore at time the mortgage was given. And that this conclusion is not in conflict with the decision of our Supreme Court in the case of Texas Land Loan Co. v. Blalock, supra, we think, is clearly sustained by numerous decisions in this state, such as Parrish v. Hawes, 95 Tex. 185, 66 S.W. 209; Calvin v. Neel, 191 S.W. 791; Watkins Land Co. v. Temple, 56 Tex. Civ. App. 65, 119 S.W. 728; Johnson v. Conger, 66 S.W. 405. And in this connection, we think it proper to note further that Moore's wife was not a party to the suit, and no issue was presented either by pleading or by proof that in making the designation of homestead, shown in the deed of trust, he thereby intended to defraud his wife of her homestead rights.

For the reasons noted, all assignments of error are overruled, and the judgment is affirmed.