55 S.W. 524 | Tex. App. | 1900
This is a suit of trespass to try title to lots 3, 4, and 5, block 5, in the town of Bristol, Ellis County, Texas. Freeman obtained a money judgment against Cates, caused execution to be issued and levied upon these lots, and they were sold under the execution, and bought in by Freeman for $10, which was credited upon the judgment. Freeman sues for the lots, relying upon his title under the execution sale, and, under the plea of not guilty, Cates seeks to defeat a recovery upon the ground that the property was his homestead, and not subject to execution.
The undisputed evidence shows that in 1893 Cates owned lots 1, 2, 6, *624 and 7, of said block 5, and that the same was then and has continued to be his residence homestead, occupied as such by himself and family. On lots 1 and 2 was situated his residence house; on lot 7 was his well and barn; on lot 6 was his garden. Lots 1, 2, 3, 4, and 5 are 40 by 100 feet. Lots 6 and 7 are 100 by 100 feet. He was engaged in merchandising, conducting his business in a rented house situated upon lots 3 and 4 in said block. In 1895 he bought lots 3, 4, and 5, and continued to use the house on lots 3 and 4 for his mercantile business. He put up a fence, the north line of which extended along the north lines of lots 1 and 7. The east line along the east lines of 7 and 6. The south line extended along the south line of lot 6 and part of the south line of lot 5. Then the fence ran north through the lot 5 and into lot 4 to a point opposite the storehouse. There the fence turned west and run to a connection with the south wall of the store at the southeast corner. A fence was also run from the northwest corner of the store so as to inclose lots 3, 2, and 1 on the west. The fence was run without reference to the lines which separated the lots. The following plat will show the situation of the lots and aid in the explanation of the uses to which they were put:
[EDITORS' NOTE: PLAT IS ELECTRONICALLY NON-TRANSFERRABLE.] *625
It is agreed that all of block 5, including lots 1, 2, 3, 4, 5, 6, and 7, has been continuously used by Cates for homestead purposes, unless it be those parts of lots 3 and 4 covered by the storehouse, and that the real issue is, whether the storehouse and land covered by it is exempt from execution as homestead. "X" designates the residence house and "Y" the storehouse. The mercantile business was conducted in the front room of the house, designated on the plat "A." In 1896 Cates failed in business. The back room to house, designated on the plat "B," was built by Cates in 1897. Rooms "C" and "D" are shedrooms. Cates has been running a boarding-house, taking in both transient and regulars boarders continuously since he moved on this property in 1893. Room "D" was used to sleep boarders, in connection with his dwelling-house, and has been used for no other purpose. Cates himself has frequently slept in room "B," and sent others there to sleep when he was crowded for room at his dwelling house. It was generally used as a bedroom by tenants of room "A," who boarded with Cates. Rooms "A" and "C" have been regularly rented out since his failure in business in 1896, the former for mercantile business and the latter for barber shop. As shown by the plat, parts of lots 3, 4, and 5 are inclosed with the garden place. The north line of lot 3 comes within five or six feet of the dwelling-house. Cates has engaged in no regular business since his failure other than keeping a boarding-house, for which he paid no occupation tax. In 1898 he raised a small crop on rented land near the little town in which he lived, bought a wagon and team, and hauled some wood for sale, and did any odd jobs of work which he could get to do. He testified that the renting of portions of the house was intended to be temporary, and that he did not intend to abandon it as his homestead. The levy of execution upon lots 3, 4, and 5 and the sale thereunder occurred in 1898. The town of Bristol is a small, unincorporated village, and, though laid off and platted into blocks and lots, very little attention is paid to lot or block lines.
The trial resulted in a verdict and judgment in favor of the defendant, and plaintiff has appealed.
Opinion. — 1. It is first insisted that the evidence showed that the homestead character which once attached to the storehouse and the land upon which it is situated had been lost by the abandonment of it as a place of business, and that it was therefore subject to execution. The verdict of the jury decided this issue contrary to this contention, and unless the evidence is conclusive that the storehouse and land on which it was located was abandoned as homestead, we should not hold the verdict unwarranted by the evidence. The manner in which the fence was made to inclose this property in connection with that already owned and devoted to residence homestead purposes, the placing of parts of lots 3, 4, and 5 in the garden lot, and the use of shed rooms attached to the storehouse as bedrooms, tended to show that the original purchase of these *626
lots was intended as an addition to the residence homestead, and that they were put to uses in keeping with such purpose. This phase of the question seems not to have been insisted on in the trial court, and is not urged here, and for this reason we will not discuss it or treat it as necessarily important. The question of homestead vel non was made to rest upon the issue whether the storehouse had been abandoned as a place of business at the date of the levy, and such is the pivotal question presented by the briefs of counsel here. Appellant insists that the fact that room "A" was rented for mercantile purposes and room "C" for a barber ship from the time of appellee's failure in business to the time of the levy and since, and that the other rooms were used as bedrooms, shows an abandonment of the house for business uses. Under the case of Pfeiffer v. McNatt,
2. Appellant asked a special charge, in effect, that if Cates abandoned his business in the storehouse, then the store building and the land on which it stood became subject to execution. The charge was properly refused. The inquiry was not whether he abandoned the business conducted in the house, but whether he abandoned the property as a place for conducting his business. This charge, had it been given, might have misled the jury. There is no question that he abandoned the mercantile business which he once carried on there, but there is an issue as to whether he continued to use the property as a place of business.
3. The charge of the court is complained of in this particular: The court charged the jury that "the husband or the head of the family may abandon a part of the property used as a homestead, but in such case he must intend to permanently use the portion abandoned, for other and different purposes than that of homestead purposes." This charge was error. If the homestead, or part of it, be abandoned as homestead, it ceases to be homestead property and becomes subject to execution, without regard to any definite intention on the part of the owner to put the property to other and different uses. The abandonment may occur without any defined purpose to put the property to other uses, but it would be no less an abandonment for this reason.
4. The only remaining assignment of error complains of that portion of the charge of the court which instructed a verdict for plaintiff, if the defendant had abandoned his business in the storehouse and was not using the storehouse, in connection with his dwelling, for the purposes of carrying on a boarding-house business, as being upon the weight of evidence. The contention is that the court assumed that the defendant was engaged in the boarding-house business. The charge is not fairly subject to this objection. The judgment is reversed and the cause remanded.
Reversed and remanded. *628
