125 S.W.2d 707 | Tex. App. | 1939
On April 27, 1926, Continental State Bank of Prosper recovered a judgment against appellant, J. T. Johnson, on a promissory note — principal, interest, and attorney's fee — in the sum of $1,484.81. In 1931, appellee, Prosper State Bank, succeeded to all of the assets and properties, including the judgment of the Continental State Bank, and in 1934, filed and properly indexed an abstract of the judgment in the office of the County Clerk of Collin County, Texas, in such manner as to create a valid and subsisting lien on all land then owned, and that subsequently acquired by the judgment debtor not impressed with homestead.
In 1929, the mother of appellant died intestate, leaving surviving her, her husband and six children, one of whom is the appellant, J. T. Johnson; and at the time of her death, and for many years prior thereto, she and her husband were the owners and in possession of appoximately ninety acres of land situated in Collin County, on which she and her husband established their community homestead, and, after the death of the mother, the father continued the occupancy of the land as his homestead, acquiring all possessory rights thereto, to the exclusion of the children, until his death in 1935.
The father of appellant died testate, and, in his will, bequeathed to each of his six children an undivided one-sixth interest in his portion of the land and appointed two of his children, J. F. and S. S. Johnson, executors of his estate. The will was probated, the executors qualified and took possession of and administered the land under the will, never relinquishing any tract or portion thereof to the heirs, until November, 1936, when a deed of partition was executed and appellant then, for the first time, came into possession of his portion of the land, segregated from that of the other joint owners, and thereafter rented it to his brother for agriculture.
In August, 1936, appellant filed in the Bankruptcy Court for the Northern District of Texas, an application to be discharged from all of his debts and, in due order, presented a schedule of assets, liabilities, and exemptions, whereupon, the Referee in Bankruptcy, after giving proper notice to each of his creditors, including the bank, discharged the bankrupt from the payment of his debts and set aside the land under consideration as his homestead, without reference to the judgment lien. Appellee ignored, thus took no part in the bankruptcy proceedings.
On January 2, 1937, appellee instituted this suit against appellant in the district court of Collin County, to foreclose the judgment lien upon the property above mentioned, alleging in detail the acquisition of the judgment and the various steps taken to secure a lien upon lands of appellant by abstracting and indexing the judgment in the manner stated. Appellant defended by *709 general demurrer, denial, and special plea of homestead exemption, evidenced by intention coupled with open, visible preparation to make the land his home; and that the bankruptcy proceedings, discharging him and setting aside the land as his homestead res adjudicata of the issues in suit, thus discharging the judgment lien, if any existed, upon the land under consideration.
The cause was tried to a jury and, at the conclusion of the testimony, the court peremptorily instructed a verdict for the plaintiff, foreclosing the judgment lien on the land; accordingly, entered judgment.
Appellant's first contention is that the land inherited by him from his mother and father is his homestead and not subject to the alleged judgment lien of appellee. He bases his claim thereto on the bankruptcy proceedings and on his testimony, supported by that of his wife, that, during the life time of his mother and father, he formed an intention to make his home on their land; that, after the death of his mother, he evinced such intention by having plans for a house prepared, investigated the cost of building, and made application for a loan to erect the improvements, and that, in January 1937, after the death of his father, he caused to be planted four shade trees on the edge of the 15 acre tract of land which had been segregated and set aside to him in the partition of his parents' estate.
It is uncontradicted that, at the time appellant formed the intention of establishing his home on the land, the land was the community homestead of and owned and occupied by appellant's father and mother, and that, at the time of the mother's death in 1929, the father continued the homestead possession, to the exclusion of his children, until his death in 1935, and, then, the executors of his will held possession thereof until the partition in November, 1936. We fail to see how, assuming appellant's intention and preparation for the home to be true, trivial as it is, the asserted homestead rights could exist on his undivided interest. It had not been segregated or in his possession, but was in the exclusive possession of another. The father, at the death of his wife, acquired all possessory right to the exclusion of the children, and until appellant's interest was determined and he entitled to possession and occupancy, he was in no position to impress the land with a homestead. The constitutional privileges of a homestead [Vernon's Ann.St. Const. art. 16, § 51] are not accorded to two claimants, coextensive with each other, on the same tract of land.
It is settled law, to entitle a debtor to homestead exemption, he must have, at least, a possessory interest in the land, a present right of occupancy. Future estates, therefore, whether vested or contingent, will not support a claim of homestead, irrespective of intention and preparation of one out of possession to occupy the land when and if the right of possession and occupancy become a reality.
In Massillon Engine Thresher Co. v. Barrow et al., Tex.Com.App.,
The court, in that case, cited with approval, a cognate question decided by the Supreme Court of Kentucky, Merrifield v. Merrifield's Assignee,
It is well to note that, in the Barrow case, above cited, the Supreme Court considered the decision of the majority in Ward v. Walker, Tex. Civ. App.
In Rettig et al. v. Houston West End Realty Co., Tex.Com.App.,
In Tucker v. Dodson, Tex. Civ. App.
So, also, is the holding in the case of Greenawalt v. Cunningham, supra, the children inherited title to their mother's land, subject to homestead of their father; it was there held that the children's interest being merely right in remainder without right of possession, and, in law, not in possession, since the father acquired possessory right to the exclusion of the children, the son did not, and could not, acquire a homestead interest therein.
It is clear, we think, that before the death of the mother and father, appellant's inheritance in their estates was not, and could not be, impressed with his claim of homestead. He was not in possession of the land and, in law, had no right of possession. The father acquired all possessory right, at the death of the mother, to the exclusion of his children; and, at the father's death, his executors acquired possession to the exclusion of all others. In 1934, appellee's judgment lien was established, covered appellant's interest in his mother's estate, subject only to the homestead rights of his father; and, at the death of his father, the lien was further extended to the interest appellant inherited by will of his father, subject only to the administration by his executors. Appellant's homestead claim in the property could not and did not originate *711 prior to the death of his parents, and, as a matter of law, the premises were never impressed with his homestead as to affect appellee's lien.
Appellant's further contention is, that the act of the Bankruptcy Court in adjudicating him a bankrupt and setting aside to him the premises as his homestead was res adjudicata, an action in rem, and binding on the world until vacated by a court of competent jurisdiction; and, such order tantamounts to a discharge of appellee's debt and release of the judgment lien on the designated homestead. The conclusion from the premise stated is not the law. The setting aside of a homestead to a judgment debtor does not affect the rights of those who hold valid liens on the property. 6 Tex.Jur. 44, sec. 32; J. H. L. Bray et ux. v. W. B. Aikin,
In the case last cited (Price v. McAnelly), the court said: "The establishment of the homestead upon the premises did not have the effect, however, of impairing or otherwise affecting the existing deed of trust lien upon the property, or the power of the owner to renew or extend that lien or the debt it secured. The right to collect his debt and enforce his lien had become vested in the creditor before the homestead character was impressed upon the property, and was not affected thereby. Dillon v. Kauffman,
And, in the Bogart-Bank case, the court said: "The rule is that exempt property is never really in the bankruptcy court, nor is the owner divested of his title where he properly urges his claim for exemption. The court has no jurisdiction of it except to set it aside as exempt property. The rights of lien creditors with reference to it must be determined in the state courts. First Remington on Bankruptcy, §§ 1022, 1024; 1 Loveland on Bankruptcy, p. 88; Brooks v. Eblen [
Courts of Bankruptcy have jurisdiction to determine the merits of a bankrupt's claim to homestead and exempt it as against general creditors, and such adjudication may not be collaterally attacked in a subsequent action. Friedsam v. Rose, Tex. Civ. App.
So, we think, in this case, the order of the Bankruptcy Court setting aside the premises as the homestead of the judgment debtor, did not and could not have the effect of discharging, impairing or otherwise affecting the judgment lien under consideration. The lien had become a vested right in appellee long before the premises, if ever, were impressed with appellant's homestead, and was obtained more than four months prior to the filing of the petition in bankruptcy; thus, the order setting aside the premises as appellant's homestead in no way affected appellee's rights therein. Whatever rights appellant acquired by the order of the Bankruptcy Court, establishing his homestead on the premises, was and is subject to appellee's valid and subsisting lien thereon.
We have carefully reviewed all assignments and have reached the conclusion that the trial court did not err in peremptorily instructing a verdict, and entering judgment in favor of the validity of appellee's judgment lien and directing foreclosure on the premises; accordingly, the assignments are overruled; the judgment of the court below is affirmed.
*712Affirmed.