*1 McCon not involved. Thus App.) 38 S.W Libecap (Tex. nell make, here order we 408, supports the .(2d) reasoning of although the a applied" in theory, different on a rests less value of case where first lien. debt held than Tex- will issue The writ Company and the Coal Oil Pacific
as prayed for. as sheriff Jones v. ZACHRY.
GONZALEZ 9612.
No. Appeals Civil of Texas. Court San Antonio. 1935. George Rector, L. and N. A. both John Laredo, appellant. for Rehearing July Denied Raymond, Alvarado, Laredo, Algee & appellee.
SMITH, Justice. involves the claim of the exemption constitutional homestead assert- ed Manuela M. Gonzalez certain inception owned her at the impressed street thereon virtue of a certificate issued to Zachry by city H. B. Laredo on March 21, 1930, May Zachry instituted this suit Mrs. Gonzalez recover certificate, crued installments on the lien, foreclosure asserted accordingly, in a trial before the jury. without a Mrs. Gonzalez’s concluded, impleaded, and children were as below, appellants codefendants and are convenience, they need not be through specifically carried the ramifications opinion. Mrs. of this Gonzalez will be des- Zachry appellee. as ignated validity certificate, money judgment and the amount thereon, questioned by appel- are here lant, complains only who of the decree foreclosure. accruing in- numerous certificate, upon the but default- financially longer when no able to meet *2 September 15, 1931, tually and on sold created in favor of its holder. Garcia, who, property continuing', appeal will be considered and determined J. J. while, installments, also with contentions, reference to those two delinquent. became sale of their order. erty to Garcia was for a recited considera- And, first, sup did the evidence which, tion, items, among other included no port finding judge payment, cash that the homestead character did not at “payment of a certain lien tach to property at the time of at against conveyed, herein tempted fixing of the lien thereon? The $900,” amounting lien and a “vendor’s upon evidence quite this issue is volumi promissory note,” $836.63, payable in nous, prolix. and Appellant and her then grantor, installments to the but no living husband upon and moved paid. which provided was ever It property, homestead, and made their it expressly agreed that “it is They have, did not then or there stipulated and that the vendor’s lien is re- acquire, after other as a proper- tained the above described years homestead. Ten later the husband ty, premises improvements, and until the died, and her numerous chil above described note and all interest there- dren, all of whom were born to the union fully paid on-are according to its face and there, continued to dwell in the home. In tenor, reading, effect and when this deed time, however, grew up, the children went shall pursu- become absolute.” It was in ways; their several some of them married Garcia, assumption ance of its that the and homes, established their own which grantee, payments made numerous in- they respectively maintain. The evidence upon debt; but he appellant’s children, May, discontinued such Antonio, then residing in San contracted .to and died in December In thereafter. the purchase dwelling there as a home for meantime had instituted this mother, name, their placing the title in her against appellant, upon tion the accrued in- although undisputed it seems to be that she stallments, and Garcia’s death amend- had no in the formation or execution and, impleading surviving Garcia’s wife purpose this originated which parties defendant, and children as sued for with, by, was executed her unpáid balance the whole debt. impulses credit, their own up her answer set her claim which some of them moved into and there exemption, of homestead against' occupied after as their home. The evidence lien,- cross-action re- vague unsatisfactory and- about covery superior against- of her title as the transaction, except appear, that it does defi Garcias, as survivors of her and nitely conclusively, did however, accordingly, subject, home, not elect or partici select the new the paving ap- lien established in- favor of pate purchase, it, in its or ever reside pellee. appro- The trial court decreed an except go there to live with two sons al priate adjustment equities upon the sale ready it, occupying after she sold her satisfy appellee’s place home to Garcia. Until then she had appeal, Garcias are not continued, true, irregularly, but none prosecuted by which is the Gonzalezes certainly, spend part the less of the time only. home, Laredo and the remainder Appellee’s claim of valid lien rests Antonio, with her children in San alter First, grounds: property, two nating between the two havens in her appellant’s conceded to have been home- pathetic peace comfort, search for time, stead at had been one abandoned and precarious by reg her was not such at the time of the issuance ularly provide funds for her own suste certificate; and, second, undisputed nance. during appellant, being single at the time of home, up absences from the old from 1919 Garcia, sale of could create to the time of its sale to she left thereon, though even it was then of, charge upon, living niece the sale to Garcia' premises to take care of her. So (with requirement undisputed during he assume the is period all that debt due “a certain lien she her household furniture in the him, property” conveyed place. is true the evidence showed .It place disintegrated that the vendor’s lien be reserved to years iri lean those thereby such into the payment) dwelling such' effec- mere semblance of a acquiesced in and place, disintegration having been but that for, character, partly parties, rights deprive performed it of innate its fixed, ap- and théreby its liabilities though “unsatisfactory, and in all were pointments mean; the could acts not be altered though it advertises thereafter Hoeldtke, obligors is of the poverty proprietors, and alone. Hill thriftless a caricature the may of its *3 possibility 104 Tex. princely of 142 of the S. W. nevertheless, exemption laws,” yet, The the family, still is as be the home of a pay to paving part of the re- (as debt certainly spirit pur- embraced consideration, $2,000), cited constituted pose, letter,, as well as the of the Constitu- part that obligation just of the as much a tion, as would the finest mansion be. purchase price of the as was the very carefully We have read and con- obligation pay to the vendor’s lien note to
.sidered the entire statement of
grantor.
Burton-Lingo
v.Co.
Stand-
kept
have
in mind the rule that the evi-
(Tex.
App.)
ard
Civ.
217 S. W.
favorably
dence must be
to
construed most
And since
findings of the
trial
the paving debt was a
of the consider
property,
are unable to avoid the firm conviction that
conveyance
ation for the
of the
insufficient in this
to es-
case
equity
imply
will
tablish the fact of abandonment.
payment
Fidelity
to secure
of that debt.
perfectly
acquired
appellant
obvious that
had not
Union
(Tex.
Fire Ins. Co. v. Cain
a new
within the true
App.) 28
case that
S.W.(2d) 833. In this
meaning of the rule that a new home must
implication supported by
implied find
be
presumption
before the
ing
dence,
judge,
of the trial
evi
sufficient
abandonment
may
of the old
indulged;
intended,
knew,
for, no
purposes
matter what
her children
would have the effect
had in -contracting for the San Antonio
fixing
the asserted lien.
place, appellant steadfastly failed to ac-
quiesce
eyes
held that
While we have
turned, just
steadfastly,
previously
to the
home. not
abandoned her homestead
old
In such
proof
case
involved,
right
involuntary
abandonment of the
old home must
beyond
be clear and
imposed
all
sought
rea-
to be
there-
ground
sonable
dispute
p.
22
yet
Tex.
on would
be validated
we aire
not
Jur.
54, and
authorities there
obliged
cited.
cognizance
further
to take
of and
enforce the rule
under our
laws a sur-
Certainly,
irregular,
periodical,
ab-
viving
power mortgage
wife has the
to
claimant,
sences of
with,
to visit
community
homestead
secure a debt
seek
from,
sustenance
cannot
estate,
community
such as this.
abandonment,
construed as an
or as co-
Hutton,
Smith v.
13
Von
75 Tex.
gent evidence of an intention to abandon.
18;
Miller,
W.
Watts v.
Tex.
13
Id.; Shepherd Cassiday,
v.
20 Tex.
Schell,
Spencer
W.
107 Tex.
Am. Dec. 372. We hold that the evidence
power,
lien was retained plaintiffs. adversely this ment rendered complains that paving debt. judgment, After of such not intended rendition It was is incorrect. statement plaintiffs appeal and statement, gave lien was notice of that such say, by that perfect appeal to this court language, but that express retained statutory filing implication. in such district court necessary was retained affidavit of costs explanation, ap- this correction With therefor. or to thereof be overruled. pellant’s motion swill tender, pay, plaintiffs nor *4 preparation of the costs of fees for transcript or the statement of of nor did appeal they file cost bond bond, only above men- but filed the affidavit filed on the tioned. Such affidavit was 1935, day January, con- 25th and was by day tested filed the 29th contest on January, 1935. MILLS, District al. v. et RICHARDSON petition mandamus relators’ Clerk, et al. recited that in cause No. No. 10315. day 214722 was entered on the 10th Appeals Texas. Galveston. 1935, December, 25, January on Court of Civil appeal alleg- in lieu bond 4, an affidavit required by ing things all of the law and 27, 1935. Rehearing Denied June 2266, by R. amended Acts St, (Vernon’s c. Ann. Civ. relators, duly by 2266), art. and sworn to by each of was filed with the court; clerk of the trial that within the days contesting ten allowed law for appeal said affidavit in lieu of bond such by anything was not affidavit entitled to contested whatsoever, probative force persons and each and all entitled to con- completely affidavit test such days by failed to contest same within ten any kind or manner of a sworn affidavit by any or traverse or testimony, sworn evidence or reason of .the affi- properly being davit not the time allowed relators’ contested within contest, law for such perfected in said cause was 5, 1935; February on that an unverified alleging traverse that relators were able to for costs filed in said cause, same, February on Fuller, Grady C. Ewing Werlein not been sworn or verified and no Houston, for relators. both of testimony or evidence had been received Lange, De DeLange, Albert Stewart same; J. concerning 1935, February that on Houston, Nathan, all of M. and Wm. Fuller, relators, Grady attorney C. respondents. Mills, requested W. who was and still J. clerk of is the district Harris LANE, Tex., prepared writing to have and fur- Justice. complete nished to him to relators appear this court .to is made . cause, transcript' the record in said writ of mandamus filed for a application requested on the same date -the Hon- and hus- and E. W. Richardson by Mrs. here band, Simmons, the official Richardson, C. that said orable G. A.