65 Tex. 723 | Tex. | 1886
Buhl’s purpose in purchasing lot eleven was, and what use he intended to make of it and did apply it to, in the years 1879 and 1880, are inquiries bearing upon the issue in controversy; they are not themselves the issue, nor necessarily decisive of it. Mrs. Buhl was entitled to have set apart to her, in this proceeding, the homestead of the family as it existed within constitutional limits at the date of her husband’s death, in 1882. What constituted the homestead at that date is the matter to be determined. Let it be conceded that lot eleven was bought in 1879 on speculation, or for business purposes distinct from any home use, and that it formed no part of the homestead in the years 1879 and 1880; yet, if it was afterward appropriated as part of the homestead and was so used and intended at the date of Buhl’s death, the judgment below cannot be sustained.
Lots thirteen and fourteen were the original homestead. Lot eleven was purchased in 1879—it was separated from lots thirteen and fourteen by lot twelve, which was purchased by Buhl in January, 1881. The four lots, all owned by Buhl, became thus, if we discard the imaginary lines dividing the several lots, a single tract of land bounded on two sides by streets, on a third side by an alley running through the middle of block two hundred and fifty-four, and on the fourth side by the outside line of lot eleven. The situation was thus decidedly favorable for extending to the outside boundaries the homestead limits. Whilst the constitution authorizes lots not contiguous to be united in one homestead, it would naturally require more distinct evidences of such destination in proportion to the inconvenience of using as parts of the same home lots remote from each other. There was nothing in the situation of these four lots to prevent their convenient use as parts of one-home; and an occupant of lots thirteen and fourteen, desiring to enlarge his seat, could do so only in the direction of lots eleven and twelve, without crossing a street or an alley. The purchase of lot twelve by the owner of lots eleven, thirteen and fourteen, solidifying the tract, was in line with and suggestive of an intention to use the whole as one homestead.
The cottage on lot twelve, when it was purchased, was moved upon lot eleven. A garden was then located upon lot twelve. The fences within the boundaries of the entire tract were so arranged as to leave in the same yard the cottage on lot eleven and the main dwelling on lots thirteen and fourteen, and direct connection within the premises was established between the dwelling and the enclosure about the stable, on the rear end of lot eleven. In the stable and its enclosure were kept the family milch cow and calf, and the horses and vehicles used by the family. Lot eleven was thus appropriated to a strictly home use, with every indication of permanency in the arrangement, with nothing occurring after the purchase of lot twelve, suggestive of any other design than that indicated by the use.
The actual use of a lot for the convenience of the family has always been regarded as the most satisfactory evidence of an intention to make it part of the homestead. In reported cases involving controversies over the intent, this best evidence of it did not generally exist, and the determination of the issue has been forced to other means. But even the positive and formal declaration of both husband and
This cottage seems to be unusually large and costly for an outhouse. In the photographs sent up with the record, it has the appearance of a very respectable and comfortable dwelling. The erection of such an improvement upon what, may otherwise have been part of the homestead, would be strong proof of an intention permanently to appropriate the ground covered to independent uses. The addition to the main dwelling of the same structure, would be simply an enlargement of the mansion. The different motives ascribed to the different improvements arises from a consideration of what is usual and customary. It is not usual for one, who desires more house room, to erect an independent structure, and, hence, to such an act is ascribed some other motive. But what the motive is, is a matter of evidence, in every case. So, if Ruhl had erected this cottage on lot eleven, it would only have been evidence, itself open to explanation, contradictory of the other proof of an intention to make lot eleven a part of his homestead. But he made no such erection. The cottage was on lot twelve when that lot was purchased, and he was not required, in order to enable him to accomplish his design to make all four of the lots his homestead, to destroy the cottage, or sell it at a sacrifice, or remove it entirely from the premises. He had the right to remove it to any part of his homestead, where he could make it the most serviceable to his family. It was accordingly moved upon lot eleven, and there, during the life of Ruhl, it was applied to uses entirely consistent with the design to make lot eleven part of the enlarged homestead. This cottage, after its removal, occupied in part, part of the time, by Mrs. Ruhl’s parents, in part by her brothers, in part by family servants, and in part by renters of particular rooms, is the single and, to our minds, clearly insufficient circumstance militating against the intent, otherwise abundantly manifested, of Ruhl to make of these lots one, and of that one his homestead. As presented here, the
The demurrer to the claim, by Julius Kauffman, of a lien upon lot twelve was properly sustained. It was alleged that he had loaned to Buhl the money with which lot twelve was purchased, with a view to its being so used. The title was taken in Buhl’s name, and the property intended for his benefit. There was no agreement for a lien, as in the case of Nichols v. Overacker (16 Kan. 64) and in all the cases cited in the note to sec. 338 of Thompson on Homesteads, &c., and Kauffman and Buhl did not sustain to each other the relation of vendor and vendee. Malone v. Kauffman, 38 Tex. 455. See also Boehl v. Wadgymar, 54 Tex. 589.
The failure of the administrator to perfect his appeal to the district court did not deprive that court of full jurisdiction of the case on the appeal taken by Kauffman & Bunge and Julius Kauffman, who were parties to the proceeding in the county court and authorized by statute to have its action revised by their appeal. R. S., art. 2200.
The only error in the judgment below is that with respect to lot eleven. For this, the judgment is reversed, and such judgment will be here rendered as ought have been entered in the court below: That lots eleven, twelve, thirteen and fourteen be set apart to Mrs. Buhl, as exempt from administration; that Julixxs Kauffman take nothing by his claim of lien on lot twelve; and that Kauffman & Bunge and Julius Kaxiffman pay all the costs of this court and the coxirt below. It is so ordered.
Bevebsed and Bendebed.
[Opinion delivered March 23, 1886.]