100 S.W. 188 | Tex. App. | 1907
This was an action of trespass to try title, brought in the court below by appellants against appellees and H. A. Stallworth, J. A. Martin and J. A. Martin, Jr. Appellants took judgment in the court below by default against the three last named defendants. Upon a trial between appellants and appellees before the court without a jury, judgment was rendered in favor of appellees. Appellants claimed title to the land in controversy by virtue of a sale under an execution on a judgment in their favor against appellees, and appellees contested such sale upon the ground that the property constituted their homestead at the time of the levy and sale.
Appellants' first and second assignments of error assail the conclusion of law of the court below to the effect that appellees constituted a family within the meaning of the constitution and exemption statutes of this State, upon the ground that the evidence did not justify such conclusion of law. We do not think this contention of appellants sound in view of the decisions of the higher courts of this State upon the question involved. We are of opinion that the testimony embraced in the record clearly shows such a social status existing between appellees and moral, if not legal, obligation upon the part of the brother to support and take care of the sister, and corresponding state of dependence on her part for such support and care, as warranted the conclusion of law of which complaint is made. (American Nat. Bank v. Cruger, 71 S.W. Rep., 784; Smith v. Wright, 13 Texas Civ. App. 485[
Appellants' third and fourth assignments of error contend that the *161
court below erred in holding that the two houses erected by appellees on the west lot were erected to be only temporarily rented, and that the evidence did not establish a segregation and abandonment of said lot as a portion of the homestead, and in not holding that the two houses erected on said lot were erected to be used as rent property and not as a part of the homestead; and that the evidence showed a segregation and abandonment of said lot as a portion of the homestead, and that same was therefore subject to forced sale. Where there is only a temporary renting of a part of the homestead and no segregation made or intended, it does not constitute a divestiture of the homestead character as to such portion. (Shook v. Shook, 50 S.W. Rep., 731; Newton v. Calhoun,
Appellants' fifth assignment of error is disposed of by what is said in the disposition of their third and fourth assignments. We are of opinion that the testimony, as shown by the record, supports the findings of fact of the court below, and that its conclusions of law based thereon are correct.
The judgment of the court below is affirmed.
Affirmed.
Writ of error refused.