108 S.W. 190 | Tex. App. | 1908
This is a second appeal of this case. The former appeal was from a judgment for appellant, plaintiff below, which was by this court reversed and the cause remanded. (43 Texas Civ. App. 191[
As in the former appeal, the sole question for disposition is whether at the time of the execution of the deed of trust by J. V. Lacour to L. W. Levy Co., upon the premises in controversy, said premises were a part of the homestead of Lacour and wife, Sophia Lacour, who sues herein as plaintiff to enjoin their sale under said deed of trust. A plat of the premises may be seen by reference to the opinion upon the former appeal, and the facts, except as to the use made of the property in dispute, are as stated in the former opinion. From the statement following the assignment of error in appellant's brief, which not being contested will be considered as acquiesced in (Rule 41;
Lacour bought the land in dispute in 1887 and fenced it in 1892. He was at that time living and has continued to live upon block 104, except for a short time during which he and his wife made their home with her mother. The land in controversy and the residence lot are both situated within the corporate limits of the town of Liberty. The lot in dispute contains twelve acres, in which J. V. Lacour owns one-half interest, and is separated from his residence lot by one street ten varas wide, a narrow block of ground and another street thirty varas wide. Since 1892 Lacour has continuously used the premises as a pasture for his horses, cows and calves, and has also used it for raising garden vegetables and corn, and has at times planted and grown some cotton, the amount of cotton so grown in proportion to the other crops is not shown. All of the crops so grown on the premises at all times have been used *165 for home consumption by the family, none of it having ever been sold, except the cotton. For one year during this time the premises were let to a tenant, who worked the land on shares, planting such crops as Lacour directed, the share of the landlord, except the cotton, being consumed by the family and consisting of the same kind of crops, corn, vegetables, etc., as were grown by Lacour, and after the crops were gathered in the fall the premises were used by Lacour as a pasture for his horses and cows. One year the land was rented for money rent. Part of the time, in addition to the use of the premises as a pasture for his saddle horses and milch cows and calves, Lacour kept cattle which he was buying to sell, but when such cattle were kept there, there were always also kept his domestic animals, such as milch cows, calves and horses.
It was held upon the former appeal that the evidence did not show sufficiently that the principal use of the property was in connection with the home and for the comfort and convenience of the family, citing Heatherly v. Little, 21 Texas Civ. App. 664[
We can not distinguish the present case from Axer v. Bassett (
The facts are undisputed, and it only remains to apply to them the principles of law in such cases. We are of the opinion that they sufficiently show that the main, general and continuous uses to which the premises were put were "for the purposes of the home" within the meaning and intent of the Constitution and laws. Other uses indicated by the evidence were only partial and occasional, and in no way inconsistent with the homestead claim.
We are of the opinion that the court erred in rendering judgment for appellee, and that this judgment should be reversed and judgment here rendered for appellant perpetuating the temporary injunction, and it is so ordered.
Reversed and rendered.
Writ of error refused.