Dunlap v. English
230 S.W. 829
Tex. App.
1921
Check Treatment
PEB CUBIAM.

English sued P. E. Dunlap for specific performance of a written contract to convey to the former three lots in Lamesa, Tex., and in the alternative for damages arising from breach of the contract. The contract upon which the suit is based was executed by O. E. Dunlap, who undertook to act as the agent of P. E. Dunlap. It was dated October 27, 1919, and obligated Dunlap to convey upon a considerаtion of $2,000, part of which was to be paid in cash, and the balance by the assumption by English of some outstanding purchase-money notes аgainst the property and the taxes.

Dunlap defended upon the ground that O. E. Dunlap was without authority to act for him in the premises, and alsо that the property was his homestead, and enforcement of the contract could not be had on that account. His wife, Mrs. Dell Dunlаp, intervened setting up her homestead rights. In response to special issues the jury found that the property was not the homestead оf the Dunlaps at the date of the contract; that O. E. Dunlap was the authorized agent to sell the property; that the market value оf the property in November, 1919, was $2,500, and in December of that year was $2,750.

The court entered a decree in favor ' of English for specific performance upon payment into the registry of the court of ‍​​​‌‌‌‌‌‌​‌‌‌​​​​​​​‌​​​​​​​‌‌‌​‌‌​‌‌‌​‌​‌‌​‌​‌‌‍$1,500, which was adjudged to be the balance of the contraсt price, less taxes and the outstanding purchase-money notes.

*830 ■ The Dunlaps appeal, filing separate briefs. The assignments of P. E. Dunlаp will be first considered. In so doing specific reference will not be made to the various assignments, confining ourselves to what we cоnceive to be the controlling questions presented thereby.

[1,2] Appellants, lived upon the property with their children until early in the year 1919. They then left Lamesa and went to East Texas, where they remained until about November, 1919, when they returned to Lamesa. It is not questioned that the property was their homestead until they left. It is not contended that they have acquired a new permanent home. Some time after their departure the place was rented to English until January 1, 1920. P. E. Dunlap testified that he left Lamesa on account of adverse conditions prevailing there. He and his wife in their testimony negatived the idea of a permanent abandonment, and both asserted positively that they at all times intended to return to their home. The .only circumstances which tend to show abandonment are the absence in East Texas for about nine months where Mrs. Dunlap’s father lived, during which time the property was rented to English, and the fact that P. E. Dunlap wrote O. E. Dunlap indicating a willingness to sell for $2,000, “and if you can’t sell it wish you would see about renting it.” A mere temporary absence and renting does not constitute an abаndonment. Neither was the offer to sell necessarily inconsistent with an' intention to return and reoccupy the property as a home if they did not sell. Thomas v. Williams, 50 Tex. 269; Thigpen v. Russell, 55 Tex. Civ. App. 211, 118 S. W. 1080.

[3] As to the character of proof necessary to show that property has lost its homestead character .by abandonment before a new and permanent home has been acquired, our courts at an early date spoke in no uncertain terms. In the language of Judge Hemp-hill, if “a homestead may be disrobed of its guaranties, ‍​​​‌‌‌‌‌‌​‌‌‌​​​​​​​‌​​​​​​​‌‌‌​‌‌​‌‌‌​‌​‌‌​‌​‌‌‍and the protection lost” before “a new and permanent one has been acquired,” “it must be undeniably clear and beyond almost the shadow, at least all reasonable ground of dispute, that there has been a total abandonment, with an intention not to return and claim the exemption.” Gouhenant v. Cockrell, 20 Tex. 96.

In Cross v. Everts, 28 Tex. 525, Justice Coke said:

“The rule to be extracted from the cases of Shepherd v. Cassidy, 20 Tex. 29, and Gouhe-nant v. Cockrell, 20 Tex. 90, where this question was discussed and decided by our predecessor’s in this court, and which is believed to be the correct one, is that, if it be admitted that an old homestead may, in opposition to this general rulе laid down by Judge Story with regard to the change of domicile, be abandoned before the acquisition of a new one, it can only be оn the most dear, conclusive, and undeniable evidence of abandonment of the homestead.”

In this connection see, also, Scott v. Dyer, 60 Tex. 139; Hudgins v. Thompson, 109 Tex. 433, 211 S. W. 586.

[4] So far as we are advised, the rulе of decision thus announced has never been overruled, though expressions in later decisions may be found which seem to question its wisdom. Tested thereby, we are of ‍​​​‌‌‌‌‌‌​‌‌‌​​​​​​​‌​​​​​​​‌‌‌​‌‌​‌‌‌​‌​‌‌​‌​‌‌‍the opinion that the evidence in this case does not measure up to the required standard, and the finding agаinst appellants upon the homestead issue should be set aside.- Thomas v. Williams et al., 50 Tex. 269. In the case last cited the Supreme Court set аside a finding adverse to the homestead claim based upon evidence apparently more cogent than here presented.

[5-7] As to those assignments which relate to the authority of O. E. Dunlap to execute the contract of sale, it may be first remarked that thе court should have excluded the testimony of English of declarations.made by O. E. Dunlap that he was authorized by P. E. Dunlap to sell the propеrty. The authority of an agent cannot be thus proven. The only competent evidence adduced to show such authority was the lettеr written by P. E. Dunlap above noted. Conceding that this letter conferred authority to sell for $2,000, there is nothing therein to imply authority to sell on credit. In the absence of any evidence that authority was granted to sell on credit, the presumption obtains that the sale must be for cаsh. Horst v. Lightfoot, 103 Tex. 643, 132 S. W. 761. The contract of sale was not upon a cash basis. The letter did not confer authority to sell in consideration of the assumption by English of the payment of outstanding ‍​​​‌‌‌‌‌‌​‌‌‌​​​​​​​‌​​​​​​​‌‌‌​‌‌​‌‌‌​‌​‌‌​‌​‌‌‍purchase-money notes and taxes. The evidence will not support a finding that O. E. Dunlap was аuthorized to sell upon the terms embodied in the contract sued upon.

Complaint Is made of the .judgment upon the ground that there is no evidеnce of the amount due. upon the outstanding purchase-money notes and for taxes, and therefore no basis for the decree awarding specific performance upon payment of only $1,500 cash. There is a complete want of evidence in the рarticular indicated, and the judgment in this respect is unsupported by the evidence.

Other questions presented in the brief of R. E. Dunlap are regarded as without merit, and the assignments raising same are overruled. Those assignments presenting the matters discussed are sustained.

For the reаsons indicated, the second assignment of Mrs. Dunlap complaining of the refusal of the court to set aside the adverse finding upon ‍​​​‌‌‌‌‌‌​‌‌‌​​​​​​​‌​​​​​​​‌‌‌​‌‌​‌‌‌​‌​‌‌​‌​‌‌‍the hоmestead issue because of the insufficiency of the evidence to support it is sustained. Her remaining assignments are overruled.

Reversed and remanded..

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