*2
(3)
appellee
failed
property;
the
C.J.,
EVANS,
Before
DUNN
her house
town was
to establish that
BASS,
and SAM
JJ.
part
As
of this
homestead.
error,
multifariously argues
appellant also
OPINION
entering
the
court erred
sum-
that
DUNN,
sought
appellee
Justice.
to
mary judgment because
brought
have
a
adjudicate title
should
appeal
summary judg-
This is an
from a
rather
a
trespass
try title suit
than seek
to
declaratory judgment
ment
in a
entered
declaratory judgment.
action.
only
summary judgment
proper
is
A
14, 1984,
appellant
On
exe-
there
convey-
a movant establishes
cuted and delivered a deed of trust
when
land,
ing
and that she
genuine
tracts of
one a 17.757 acre
of material fact
two
issue
tract”],
“17 acre
as
as a matter of law.
judgment
tract
is entitled to
[hereinafter
(Tex.
promissory
payable
a
note
to
security for
Hughes, 488 S.W.2d
Swilley v.
$121,000.
appellee in the amount of
On
summary
In
1972);
166-A.
a
Tex.R.Civ.P.
27, 1985,
plead-
appellant filed
proof
November
the burden
judgment proceeding,
ings
Bankruptcy
in the
States
United
movant,
to
all doubts as
the
the
is on
Court,
District of
Southern
fact
genuine issue of
are
a
existence of
Division, alleging
the 17 acre tract was
Roskey v. Texas
against
resolved
him.
6,1986,
May
the trust-
homestead. On
Comm’n, 639 S.W.2d
Health Facilities
prop-
and the
ee foreclosed
curiam).
Once the
(Tex.1982)(per
erty
conveyed
appellee.1
right to a summa
movant has established
non-
judgment,
burden shifts
ry
August 12,
brought a
On
movant,
present to the trial
must then
who
declaratory judgment
to determine
action
preclude sum
any
that would
issues
and court
whether the
acre tract was free
v. Clear
mary judgment. City Houston
appellant’s
claim and to
clear of
appellant’s
asserts in its brief that
pursuant
that the issue
Appellee
to a
and further ordered
bankruptcy
stay,
exemption
in a Texas
for
from
be determined
motion
relief
lifting
a final order
the automatic
court issued
court.
district
lien,
stay
allowing appellee
its
to foreclose
Auth.,
response
appellee’s
In
589 S.W.2d
motion
sum-
Creek Basis
mary judgment,
filed an affidavit
(Tex.1979).
stating that she was awarded the 17 acre
proof
appel-
summary judgment
As
tract when she was divorced in October
residential
lant had established an urban
1983, and that since that
time she has
homestead, appellee
appellant’s
attached
claimed this
as her homestead.
deposition,
wherein
testified
*3
prior
She said that she “told the bank
to
she
acquired
17 acre tract when
she
the
14, 1974,
September
I
present
that
had a
repaired
in 1982. She then
was divorced
occupy
to
intention
build a home and
the
fences, put up
16-foot metallic stor-
the
a
homestead,”
my
17.575 acres as
and that
colt,
age building, pastured mare and
a
she
to
a
“never intended
as
home-
hay crops,
picked
planted
and
and mowed
stead, the house and lot in town at 734
site, placing rocks at the cor-
out a home
Bellville,
O’Bryant,
East
Texas.” She stat-
ingress
egress
There was no
or
to
ners.
prior
executing
ed that
to
the deed of trust
storage building
prop-
the
or utilities on the
livestock,
hay,
placed
cut
and
that: she ran
nights
land;
in
erty,
spent
storage building
bought
she
about 20
there
but
a
on the
she
in
car,
property
the house
town for investment
campfire,
cooked on a
used the
in
and to live
until she could afford to build
bathroom,
friends
“draw” for a
and invited
apart-
on the rural
and built an
property
Ap-
see the
and drink beer.
to
a
pur-
ment in back of the house for rental
pellant
picked
said that she had
out a house
poses; the tract was used as collateral for
plan and talked to a builder. She also said
at the
the loan
bank's insistence because
acquiring
and after
the house
before
parcels
only property,
the
of the three
was
town,
banker,
pastor,
in
she told her
owned,
free;
appel-
she
that was debt
and
friends,
relatives,
as well as the builder
lien
lee did not inform her that a
electrician,
that she
to
an
wanted
build
prohibited
property.
In
on homestead
so
property.
She testified
when
alleges
testifying, appellant
that she has
1980,
bought
property
she
in
she told
the
whether she had
raised a fact issue about
in
office that
someone
the tax assessor’s
requisite
the intent
the
overt acts to
homestead,
the
was to be her
but
a
claim on the 17 acre
establish
put
writing.
in
she never
this
so,
If
tract.
then
must show
1983,
February
In
or March
property as her home-
she abandoned this
brick,
bought a
two-bedroom house at 734
its
stead in order to validate
lien.
Bellville,
O’Bryant
in
she
East
Generally, a “homestead” is the
lived in this house at the time
deed of
the
constituting
family resi
dwelling house
the
trust was executed and until she moved to
dence, together
the land on which it is
with
in
Colorado
house has full utili-
appurtenances connected
situated and the
water,
gas,
electricity,
central air and
ties—
210
Montgomery,
therewith. Gann v.
heat, telephone
equipped
with such
—and
(Tex.Civ.App.
Worth
S.W.2d
— Fort
garbage
amenities as a dishwasher
dis-
n.r.e.) However,
1948,
a home
ref’d
writ
posal.
improved
Appellant
property by
upon
exemption may be established
stead
having
landscaped
yard
and a small
presently in
unoccupied land if the owner
building
to the rear of the house
built
premises in a
occupy and use the
tends to
1984,
where her son lived. In
future,
in
and definite time
reasonable
appellant’s
listed in the tele-
address was
toward
preparations
made such
and has
phone directory
in church and
other
of such
occupancy and use that “are
actual
organizational
records
as
734 East
such an
proceeded to
and have
character
Appellee
a certi-
O’Bryant.
also attached
beyond doubt
to manifest
extent as
copy
exemp-
fied
of a residential
improvements
complete the
intention
application signed by appellant
tion
on Au-
place as a home.”
upon the
and reside
19, 1985,
1095,
(Tex.
gust
claiming
O’Bryant
Lewis,
the East
249 S.W.
Lilly v.
1923, writ);
January
no
Si
Civ.App.
as her homestead as of
Antonio
— San
(Tex.Civ.
Alford, 441 S.W.2d
mank v.
Solis,
n.r.e.),
(Tex.
Bank v.
A
Nat’l
ref’d
S.W.2d
App.
writ
— Austin
ref’d)
Civ.App.
writ
cannot
an
homestead claimant
claim both
— Waco
Wallingford
and rural homestead.
portion of
We sustain that
Bowen,
(Tex.Civ.App.—
S.W.2d
appellant’s
relates to
one that
writ).
Amarillo
claim.
that there are fact
Because we conclude
appellee did not
We conclude that
precluding summary judgment,
issues
we
in Bell-
conclusively
the house
show
appellant’s
not address
contentions
will
appellant’s urban homestead at
ville was
points
appellee's
of error
two that
one and
the time the deed of trust was executed.
adjudication of title
suit is for
and should
application
a resi
Appellant’s filing an
brought
trespass
try
been
as a
title
have
exemption
dential homestead
with the tax
re-
requested
action
order to obtain the
19, 1985,
in August
assessor
does not
lief,
failing
that the
court
erred
law, that
prove,
proper
as a matter of
this
grant
hearing
special exceptions
*4
ty was her homestead when the deed of
complaining
appellee’s
of this defect
14,
trust
executed on
pleadings.
Also,
not,
occupancy
property
ipso
of
does
judgment
is reversed and remanded.
facto,
a homestead. Ro
property
make the
Corp.,
v. Home
berson
Owners’ Loan
147
BASS,
dissenting.
J.,
SAM
949,
(Tex.Civ.App.
952
S.W.2d
— Dallas
cor.)
1941,
judgmt
faith
writ dism’d
Good
BASS, Justice, dissenting.
SAM
prime
occupy
intention to
is the
factor in
respectfully
I
dissent.
securing the benefits of the homestead ex
holding
disagree
majority’s
I
with the
emption,
preparatory
and
acts collaborate
question
that there was
fact
about wheth
Gebhard,
v.
Cameron
this intention.
85
appellant performed
acts
er
sufficient overt
610,
(1893).
Tex.
22
1033
S.W.
In her affi
designate the
acre
her
17 rural
tract as
davit, appellant
that she
stated
has “contin
best,
At
the evidence shows
homestead.
uously intended and does
intend to
now
appellant
occupy
intent to
had an
use, improve, occupy, and
17
claim” the
property
in the
at an indefinite time
homestead,
acre tract as her
and that she
future, which,
more,
without
is insufficient
present
told the bank
intention to
question
a fact
to raise
issue
occupy
home
build a
the property as
McClurkan,
v.
homestead. Davis
378
her homestead.
1964,
(Tex.Civ.App.
358
S.W.2d
— Eastland
writ) (no
improvements,
occupation
We conclude
there exists a fact
or
no
question regarding appellant’s
but mere intention to
at some fu
claim,
therefore,
it was error for the
is
to establish
ture time
not sufficient
v.
grant summary
homestead);
court to
see also Van Hutchins
judgment
for
appellee. Further,
Pope,
(Tex.Civ.App
we
that there
conclude
front);
v.
Supply
Houston
Co.
Lumber
Joventino SAENZ
(Tex.Civ.App.
MACHADO,
Bank v. S.W.2d 1935, writ) (building a
App. — Eastland plus planting crops insufficient fence homestead).
establish appellee’s I
Accordingly, would hold that shows,
summary judgment proof as a mat- law,
ter of had established *5 city property
an at on the executed,
the time the deed trust was precluded therefore asserting
from a homestead claim on the Appellant’s prior
acre tract. use of the impress property was insufficient con- with homestead character when
sidered evidence later with
purchased city property, made her fam- there,
ily im- residence substantial made
provements and filed an
application designating it as her home- otherwise, preclude To hold
stead. would
summary judgment relief where a claimant alleges to create a
merely an intention an unoccupied property at future, unaccompa- time in the
indefinite justify a by
nied sufficient overt acts to designation.