*1 y. Tex.) BELL (230 5.W.) by home- her as in attacked Antonio, City San Garza rights, pleadings wife’s heló aban- to 488. particular don her homestead claim a this affirm we must follows place entire claim appellee all of the to in favor ment in homestead on another tract. home- except controversy &wkey;>l64 re- during acres we this 200 2. to Homestead abandoned As —Not stead claim. occupancy place of rented before trial court of the verse moving to new home. appellants. judgment in favor here render in Where a husband and from wife moved trial court of the their former homestead to be- a rented damage appellee favor of disagreements cause of between the wife and by reason of 640 acres on all the timher by children a former with intent by “turpentined” been it had only temporarily remain there move on a must we follows defendants. they wife 400 acres on which cause, this so remand verse and intended to make their and the ex- damage claimed the former can abate trial court such until appellants. moved on the 400-acre awarded 200 acres tent of there was no abandonment of the former home- remand the reverse and We also designated stead until the new war- on the several as such. ranties, proper allow- credit can be so by title to fact that ed reason <&wkey;I54 3. Homestead defraud —Husbandcannot accordingly so fail. And is did not acres ordered. causing wife in abandonment homestead. belongs While the to select ren- part, part reversed Affirmed in perpetrate he cannot a fraud remanded, causing dered, the wife reversed and of one and in abandonment homestead and the loss of another intended with instructions. On &wkey;>2!7 4. Homestead —Consentdecree between Emporia Kirby by marriage husband and deed timber held May, rights. fraud on second wife’s homestead Company was dated 21st Lumber opinion gave original -living Where a husband In our and wife 1904. date as had been on a as their May homestead and made valu- 12th. improvements thereon, able but because of dis- Carter, F. referred also find that S. agreements by between the wife and children testimony, Hughes’ F. in our reference to B. marriage a former temporarily moved Emporia Emporia president Com- Lumber was pany, place, intending to make their home Lumber Com- and “when the later on a tract of 400 h consent purchased finally pany negotiated husband and between the the children without company suit, notice involved section temporarily by residing place, the rented represented S. F. Carter which the children were the former told, chase, two had been more and he tract, subject homestead and the 400-acre years before, by Hughes, that Abbitt a life estate in the husband and a lien on the said he had sold the to Adams. estate to secure carefully the record examined have husband, held void as to the wife as a fraud assignments made the other reference appellants our conclusion of <&wkey;>l64 5. record, Homestead state- inducedto move and, our —Wife construe as we occupied temporarily another tract of land respects. fully in all other sustained ment defeat claims of creditors did' not abandon mo- giving due consideration former homestead. parties, rehearing filed both tions for Where a wife was induced the husband things overruled. are in all to move on a tract of land owned him for aiding him off his land, by per- creditors until he could sell the promises suasion and influence and would move another tract as their home- stead, acquired the wife no homestead (No. 6522.) v. FRANKLIN et al. BELL therein and did former homestead she continued to claim Appeals (Court An- of Texas. San moved on the tract intended as a Rehearing Denied March tonio. new homestead. April 13, 1921.) &wkey;>2¡3Pleadings &wkey;>!3, Only have 6. Homestead held to one homestead I.Homestead — 164— allowed; alone par- abandoned wife’s claim homestead husband abandoned unless new ticular tract. homestead, *2 230 SOUTHWESTERN <&wkey;l8l(3) before situated in Milam Williamson counties. 7. Homestead —Abandonment be clear- acquisition homestead must of new upon The notes sued were in ly shown. agreed judgment suance of the terms of be- of an old homestead An abandonment against J. D. Bell in obtained the district must be acquisition new one of a fore the court of Williamson between J. D. conclusive, clear, un- most shown herein, Bell and the defendants in .error deniable evidence. marriage children mother, a former their persons <&wkey;26Payments Subrogation 8. — Bell, deceased, Kate notes which decree held fraudulent title vested with exeputed by pursuance in said Bell of subrogation. give voluntary of partition the terms of a settlement embraced a hus- decree between Under a consent agreed in an decree between defendants former a band children and his community error their claim of whereby, rights, of wife’s interest between them and said J. D. Bell children was vested title to estate, by subject subject and their husband deceased estate of the mother’s terms a life outstanding payments liens, apart also to of which decree there was de- set prior interest the liens were of tax.es fendants error lot 2No. a voluntary, not enti- lot No. 1 in the Pietzeh First addition subrogated to the interest tled to be lien holder. Bartlett, decreeing the town of life a (cid:127) estate to said J. D. Bell in and to said of land in acres Milam and Williamson coun- for On Motion fee-simple thereby ties who surrendered &wkey;>1175(7) Appeal of Civ- 9. and error —Court title and to defendants error de- questions may Appeals reverse on fact. il reducing estate, thereby creed remainder Sayles’ St. Ann. Oiv. Under Yernon’s fee in to a mere life estate upon 1626, providing reversal art. court below necessary ter of thorized, verse on required in D. Bell. J. In this decree it was -judgment such the court shall render D. Bell J. should and deliver to execute except when it is rendered should have children, each his said four some mat- to remand to ascertain fact, Appeals $1,500, a is au- note for the of Civil sum se- the Court proper required, upon a case a lien cured his life therein question facts are to him decreed said 400 acres fully developed and uncontradicted. duly land. Said four <&wkey;>l 122(2)— Appeal him to 10. and error Court error. Appeals findings.. sought make new coupon Civil to recover interest on *3 right designated prior the with decree until her to said she made or lett upon part expressed move home on his to on intention the 400-acre tract. Bell, home- occupy their The court the 400 acres as purpose found Kate for- and said that his wife, to stead, on her mer died and with June but intestate new on March, 1908, until a homestead the 30th intermarried the Bartlett of he plaintiff error, in with of and at the one was death the 400-acre that Kate Bell she It further averred and D. Bell com- was owned tracts, separate munity property, including composed three of an interest tracts tract was acres; acres, in homestead; the Bartlett 1S7.9 and that Nos. viz. 210 that marriage (part acres) his 2 since and 3 last two the 400 the $2,000 plaintiff plaintiff and chased after J. D. in with Bell married with expended error; 3, compos- thereon that funds tracts Nos. and their pur- ing it; land, was improving 210 acres 400 acres of that farm are now used plaintiff as their Bell him before homestead of J. D. chased expended error; $5,000 funds that at time of their of the decree of partition they living making prem- thereon. on rented adjudged Bartlett, prayed be ises in the town was that decree because it She community rights agreeable es- family plaintiff void, that her to the for right therein, daughters; her error to remain tablished be there with the protected it when went that was a tion to the pleading off- answered, temporary move, D. Bell as it inten- was the notes, prayed, if credits on said D. Bell of J. on the 400 acres sets move his answer of previously on the aside for set their said decree said homestead. He had not Bell, then plaintiff wife, there, homestead, though Pearl lived he on the 400-acre consideration garage without be declared *4 it, jected plaintiff con her acts ob- error returned unless homestead to a position living home, placed in a to her herself the and she duct she against longer left for a mother. defend lived while with her can no where she notes. We Her husband the took her to the 400-acre the lien decree or county by assuring the in Milam it the decree her that the time think at as were void would be their lived *5 13 E. 704, v. N. ultimately make but 274, Adams, 275; 64 12 N. W. v. 89 James is, not an abandonment where it now was 587, 193; Pelham, Tex. Gunst 74 Tex. v. right. any It did not breathe’into Zuber, 278, 233; S. Fievel 67 Tex. W. v. notes, execut- these void this ed vitality decree and W. 273. existed, right while We believe the court erred its has destroy would holding the decree ment property, or be obligations against present the home- valid thereof, take or as an abandonment strued away right further stead erred defendant according "right acquire, to their foreclosing *6 improvements ion that most of the made done, question before us. is not before the here was rendered in the case At error have rate my July, best equity presented for relief or such a case garage about it. The was built before the See, subrogation will find favor. rendered, garage and over that subject, into must who comes supposed “He my temporary to be home until hands,” A. L. R. 44. come with clean he had the fix means to a better abode. There garage community marriages was a built the Davilla both The estates living Bartlett, provi I was and there was follows: are as garage sions made over the for a community property of the first mar- home; provision room, was one I interest, riage just lived in that room the Davilla after I moved down to for, was: and to be accounted farm; May I lived in it from September (arm (210 I don’t remember when that acres of the 400-acre Hamblin improvements 53,000 put tract) up. objected room but and incumbrance 00 00 00 I less to it as a town, improvements....... less finally Homestead it, was reduced to move into Ias 1,200 shares bank stock. go.” had nowhere else to $5,00000 found, The court and the facts so estab- it, lished that when community property Bell took his mar- was: wife the second disposed partition, riage, (as Bartlett home he intended then proof showed) and ever afterward to move out of the 400-acre acres and 10 acres 7,100 4,200 2,000 tract, $2,750 00 garage debt.$ and “built a Improvements garage, with one room over the which was Improvements town occupied by afterwards Bell for a few J. D. Bell and Pearl days $13,300 or weeks while the house being completed.” in which now live was the last- is conclusive that The evidence the/inception Prom of that decree on down purchases items of named fraud, great to the end not but a in- marriage, and th'e second made after justice, has been done to the and and proof not show that the for error; separate from the of D. funds either in error do not into the defendants come community funds of Bell or from marriage. the first appeals a case as court with such pleadings powers equitable court. The finds a fact: The court perhaps so framed as to of neither said with That it cannot be giv- confidence which granting permit relief of other than “According of funds were used. character a herein. en Bell in statement D. the the Apparently in error have of the defendants in entire interest estate of plaintiffs in error’s ceived from only $2,- their deceased mother through estate, father’s her hus- He, however, decree, gave 500. $6,000 acts, more sufficient take care band’s notes, $400, liens. value of and the remainder in of rehearing 400-aere tract. At the time The motion overruled. In suit to foreclose There one and un- a husband to his children til a new homestead can be marriage, pursuant former decree enter- abandonment old act one by agreement, ed without notice alone. wife husband topic Key-Numhered <g=oFor Digests see other oases same and KEY-NUMBER in all and Indexes
Notes
question aggregating becoming On reversal $757.65 due as Appeals can Court prior against incumbrance the said give and cannot make findings effect to thé trial court acres of land and taxes thereon' aggregating new of fact. alleged $190, protect paid by have been Equity <&wkey;65(2)Subrogation foreclosure, be- the estate from denied — parties. subrogation cause of conduct of rights claim Where, original holders, sought personal fraud of the homestead of a decree was entered be- consent ment against J. Bell with said D. foreclosure tween the and his children a former husband present wife, him and his Pearl marriage, vesting title in the children to land on said land. subject estate in to to the husband and Bell, plaintiff Pearl outstanding liens, children, in partitioning prop- to said decree seeking subrogation rights paid, said of creditors prior erty required by whose not come toor the notes the terms of appealed into court case as execute, said decree that J. D. should equitable powers of the court. nor has she ever consented thereto or waived rights against them. Plaintiff error Court, Error District Williamson from March, D. Bell were married in and J. and since Judge. County; Graves, Ireland February, 1918, have Suit Inez Franklin and others together resided and lived 400- said Judgment plaintiffs, J. D. Bell and wife. their tract as acre brings Pearl Bell the defendant represented Plaintiff error answered Reversed rendered. was obtained decree consent, without her fraudulently Nunn, . F. D. Love and W. H. both of procured, and therefore void Georgetown, for in error. against her Georgetown, interest and home- Graves, & de- Wilcox rights; purpose-and design being fendants deprive her of her said COBBS, This suit was to recover a therein. all other personal judgment represented J. D. Bell and to in error further Plaintiff purchased foreclose by notes executed Bartlett homestead said. marriage favor of him in D. Bell their gr"ut. subsequently $800, out of the M. 400 acres of Davilla thereto and after topic Key-Numbered Digests (g^Por same cases other see KEY-NUMBER in and Indexes Tes.) BELL (230 S.W.) spent marriage very
[2] that she did their funds clear $3,000 making not, however, there- abandon her homestead claim on; at or before D. Bell moved the Bart said J. and to premises in Bart- lett a clear their said home to she had home
with it the and had built a one room over judgment against plaintiff them. which in error he and afterward without the court case was tried few before moved into weeks was de- for on the jury, personal being completed finished, the house then due error for amount now (cid:127)which live as a homestead. fendants notes sued the paid on, as amount Prior to from Bartlett moved incumbrances, county amount alleged house on a Williamson Bell, taxes, Bell, heavily J. D. on the owned J. D. with incumbered acres debt, designated on the 400 of the their It foreclosure as plaintiff plaintiff him and found that further error demand- provide special findings requested in the ed and The court made her separate home, expressing willingness judgment, then filed additional to live at provide. findings' might special law. fact and conclusions home lived Wil- he county months, all the farm statement of a few There was also filed a liamson never really perma- court’s to make it facts. Some intended challenged plaintiffs law Pearl not a clusions of are nent home. was However, directly refer- without the decree. thereto, any complaints evidence, ring think in’ connection
[3] assignments, specifically findings, sufficiently will we with the court’s lishes the estab proposi- opinion the various was discuss as shown law and the facts tions of raised her claimed as applicable necessary, moving as present record it was abandoned home, understand it. intended neither to abandon assignment challenges as the Bartlett homestead such until her present for them ment of partition court husband secured stead. home always expressed July, willingness of the 5th of between She her, Virgie accept provide Bell and and J. D. as to he others home would being always plaintiff told her was to valid and he be on the right an alienation she 400-acre tract where court found their party, not a hence her now to He left the be. Bartlett express with the intention mak pass upon ing home.
[1] not called 400-acre tract their is true her homestead claim Bartlett he her to with him induced move -reinvesting her the view Williamson where re time, swore, as she has abandoned but a short as she her mained subsequent aiding that, defeating acts and conduct. If him clearly pleading, holding still she creditors until could he sell placed land, entire claim he a short for homestead but time. She 400-aere tract. him to make homestead when asked 230 SOUTHWESTERN ' there, refused to used a witness er- but he moved ror, and, thereon, denying any heavy still intent defraud incumbrances because of declaring settling intended he admitted that girls” He “the become. he had little the them “a as was be their home settlement, you might better That but then make the home. had the say doing my part.” that was belongs but in free on un- doubtedly free, perpetrate permit him to at the same time was law will attempting deprive everything, the abandonment his wife of cause his wife “girls,” even her of the other. interest of the the loss one and during shape pleadings and who these absence 5] In possession entitled evidence, in error is Bartlett took
had of those execution to her. place years Bartlett there more than two at the time of lived had plaintiff im trial. out of After the Bartlett been forced and made valuable as their provements impressing home, attorneys thereon, it endeavor- sign papers, Because ed to her way induce every character. veying error, agree being property his all the Bell’s D. she and J. get only error, not could condition to which she would Bell, together, the father that the 400-acre along tract was J. D. attorney tem her to her willing a homestead. for her to husband, persuaded porarily induced as The was un- place papers or to show move read attorney. Evidently 400-acre home on the them to his her suit make could daughters de she Even then D. between J. Bell and to do. his intended which he place, very friendly one, purpose Bartlett be the and for the had ac- home to her clared against parties, complishing persuasion includ of all what not been obtained signature plain- interest of lawyers her ing to see the endeavor to secure sent papers. obtaining a written tiff in that error to juncture, judgment, At effect. D. notes were declaration temporarily daughters, complacent in the rented Bell to his mort- and Bartlett, fee-simple gage given county. and his was made on the 400-acre in Milam plain tract of to this inference from settle- title over daughters with remainder estate life ment is that J. D. cut down to to these defendants on this life were lien fixed plaintiff to have all security, to as in the land estate error would be out on without a world party nor Bell, was not a plaintiff in error home. As said Edith one plaintiff “girls”: stepmother girls notice. As “We and our had still and had not rights asserting get along very together.” Bell, her well J. D. daugh- in fact nor at it abandoned in ters, lawsuit between him and his another, acquiring attorney’s a lien fee time of the latter as expenses. property course, well witness to of the to have conceived the other Of as to her. She unenforceable was void testified that she had intention no circumstances, peculiar not, stepmother, merely defraud her to take all temporarily coun by going property Virgie, to the Williamson from her. who seems made,'persuasion promises ty land, plan for the settlement acquire her influence with her father cution, had it into and homestead carried exe- there, testify. it for was a mere did not married She occupancy, temporary a fraudulent girl. done with went New York. She is the eldest her homestead, husband to de 7] There can be but intent fraud some ment that homestead one creditor, the distinct state until a new homestead is acquire any be no abandonment of the old act of ultimately go there, Plaintiff in the husband alone. ciously error tena held to homestead in Bartlett un leave Bell home, his wife to til the one on the 400 induced acres. When him, without enabled As the decree and the notes their Bartlett consent, very temporarily residing make at time or she was his wife’s children, generous with his in a rented Bartlett and when she settlement claiming writing cutting 400 it-in and otherwise as title acres down to was homestead, about which there the other can be her life estate dispute, her dis- the entire transaction was in error likewise had placed An abandonment interest. He her at a her whereby acquisition advantage, Though before the she was overreached. old clear, must be shown “on he new one the most the husband Tex.') BELL v. 1.85 Í.W.) (230 decree is it is aban- The recital in conclusive, and undeniable be, homestead,” Mr. “that the title to the said as said tbe donment Margaret hereby, Virgie Bell, Everts, Mc- Tex. 583. 28 vested v. in Cross Coke Justice (defendants Carty, Bell, subject, Mr. the late Inez and Edith Bell Speaking the same error), Robertson, joint v. in com- tenants Crockett owners and Sawnie Justice mon, subject therein 135, Templeton, said: Tex. out- said J. D. standing oth- mantle no consent he can “Without This land.” protections. Un- w'th er habitation til language assunfpsit them an abandoning bind she unite he and she * * * occupies, liens; pay is their neither does bind his creditors She can no more warranty by any most, At so. hers.” than he can preserve redemption, to secure his necessary in- own to their which it became McGuire, See, also, S. W. Robinson v. Graffenried, discharge. Miller v. De terest al., 415; Thompson Hudgins et 172 S. W. v. 941, 942, Ann. Cas. Pac. Colo. Schrimsher, 659; Parker v. Fleming, 981; 3 N. Hancock v. 103 Ind. to Williamson removal 255; Briggs, Minn. Walther v. E. persuasion, husband’s land under Holden, Drury 909; 121 Ill. N. W. their home- their to make that with the intent not stead, McNaughton Burke, 63 Neb.
liens
those
right
preparation, a homestead
intention and
in the 400-acre
decreeing
error and
abandon-
tract. There was no
liens.
a foreclosure of all the
homestead
Therefore
the latter
homestead until
ment of the former
reversed, and
here
is
through
prelimi-
was
And all
these
plaintiff in error for
in favor of
rendered
nary stages
the void notes and void
extent
her home-
land sued for to the
be invalid
remained as such
continued to
rights in
be selected
200
plaintiff in
Bell
of the 400 acres. J. D.
out
course,
Bell, those
error. Of
notes are
appeal,
no order is made
obligations,
valid
but not as
him.
against her homestead
Reversed
rendered.
assignments
regard
complain
[8] In
ing
action of the court
de
On Motion for
judg
fendants
ment
paid
to have
because
entitled
ground
by way
subroga-tion,
motion
10] The
rehearing
power
court has no
is
interest on
liens
matured
valid
question of
on a
taxes,
to reverse
and
dence to show
there is no evi
state
trial court.
is
paid
determined
That
at
instance
exactly
Appeals,
request
what
the Court
of D. Bell or
If the
his wife.
required
cases,
payments
is
article
request,
without
Sayles’
1626,
Statutes,
subrogation.
Civil
unless
Vernon’s
be no
would
no
be
necessary
voluntary payments.
of fact be
it
ascertained,
matter
more nor
payments
that some
less
is
knowledge
in which case would be our
were made with full
Farwell,
duty
Slaughter,
Durrell v.
88 Tex.
all
App. 524,
facts. Scott v.
35
Civ.
Tex.
remand.
539,
185;
98,
Elsler,
645;
Henne
S.
S. W.
30 S. W.
80 W.
S.
v.
87
71
Pitts
&
607;
518;
Meyer Moultrie,
216,
347, 28
Taylor
Hall,
Tex.
97 Tex.
77 S. W.
v.
v.
Spencer,
Wininger
216,
813;
141;
v.
McFall,
Tex.
Pa.
liam v.
9 S. W.
91 S. W.
Gould v.
118 Cook v.
56,
Irving
336,
Railway,
1150;
Rep. 606;
Am.
105 Tex.
146 S. W.
Atl.
Gil
St.
Alford,
931;
Freeman,
Mc
Tex.
106 Tex.
155 S. W.
6 S. W.
v.
Atchison,
Clary
308; Pomeroy’s
Cochran,
&