145 S.W. 658 | Tex. App. | 1912
W. C. Sanders and the appellee, Mary Sanders, were husband and wife, living in the state of Oklahoma. They owned property there which they sold, intending to go to New Mexico and acquire public land there as a home. They had a family of ten children; but the five older ones were grown, and did not live with them. After having sold out their property in Oklahoma, W. C. Sanders one day told his wife that the wife of one of their sons was very sick, and she left on the train to go to her son's place, a distance of about six miles, and on the next day she returned to her home. While she was away, and on the night of the day that she went to visit her son's sick wife, the husband, W. C. Sanders, took the five younger children and abandoned her, going first to Shreveport, La.; thence to Houston, Tex.; and thence to Nolan county. In Nolan county he purchased a quarter of a section of land, the same being the premises in controversy in this suit, and lived thereon with his children for about 15 months, when he sold and conveyed the same, for a valuable consideration, to appellant. After selling the same, he left Nolan county with his children, and shortly thereafter he wired his wife that he was going to send the children to her, which he thereupon did. The wife did not know where her husband or her children were up until the time the children were returned to her, and she was abandoned by her husband, as above stated, without her consent and without fault upon her part. She and her older children endeavored to ascertain the whereabouts of her husband and the children he had taken with him, but were unable to do so. Her husband did not communicate with her, and did not permit the children with him to do so. It was her intention at all times, as soon as she Could ascertain the whereabouts of her husband, and children, to go to them and live with *659 them, and at the time they sold out their property in Oklahoma it was her intention to go with him to New Mexico and acquire a home there; and it was at all times her intention to make her home with her husband and children wherever they might be. She knew nothing about the ownership by her husband of the land in controversy until after Sanders had sold and conveyed the same to Crutcher.
At the time Crutcher purchased from W. C. Sanders, he was informed by him that he had a wife, but that she had abandoned him six years prior to that date, and had lived separate and apart from him, and had refused to live with him as his wife, and that she had no homestead rights in the land; and he further informed Crutcher that his said wife had never lived in Texas, but was then residing in Oklahoma, and that the land was his separate property.
This suit was instituted by appellee against Crutcher for recovery of the above-mentioned quarter section of land, upon the theory that she had a homestead right therein when the same was conveyed by her husband to Crutcher, and, a conveyance by the husband being in fraud of such right, the same was therefore void and passed no title. Upon trial before a jury, the court gave a peremptory instruction in favor of the appellee, and the court's action in this matter is here sought to be revised.
We have been unable to find any authority directly bearing upon the question here involved; but, under the facts detailed above, we think the court correctly instructed a verdict for the appellee. It is true the wife never, in fact, lived upon the land, and it is true that she had no knowledge of the ownership of this particular tract of land until subsequent to its conveyance to Crutcher; but when W. C. Sanders acquired this tract of land and moved thereon with his five children and made his home thereon for a period of 12 or 15 months, and until he conveyed to appellant, it thereby became the homestead of his family. The appellee was his wife, and the fact that she had been wrongfully abandoned did not affect her right to live in this home with her husband and children; and the only reason she was not doing so was because of the wrongful acts of her husband, over which she had no control. It is true the question of intent is usually a controlling factor in determining whether or not property is impressed with the homestead character, and, while there is no direct evidence showing that it was the intent of W. C. Sanders to make this property his home, yet it is clearly evidenced by the fact that he moved thereon and lived on the same as his home with his family, and there is nothing whatever in the record to indicate that it was not his homestead, and his residence thereon with his children clearly impresses it with that character. It was the acts of W. C. Sanders which made it a homestead; and, while the wife never, in fact, lived upon the land, yet as his lawful wife she had a right to live upon the land with him and her children, and, had a homestead right therein, although she may, in fact, never have been on it.
The case of Linares v. De Linares,
Now, in the instant case, the property in controversy was the homestead of the family of W. C. Sanders. The appellee, Mary Sanders, was lawfully and rightfully a member of that family, and it was at all times her intention to remain a part of that family and claim her homestead rights in any home which might be acquired by the family; and, when properly interpreted, we believe the case of Linares v. De Linares supports our views in this case. See, also, Henderson v. Ford,
Affirmed.