Opinion
No. 3875.
July 16, 1930. Rehearing Denied July 31, 1930.
Appeal from District Court, Titus County; R. T. Wilkinson, Judge.
Suit by P. W. Milner against the Scottish American Mortgage Company, Limited. Judgment for plaintiff, and defendant appeals.
Affirmed.
P. W. Milner brought the suit, and, after setting up the facts, sought to recover the title and possession of a lot in Mt. Pleasant and to cancel a sheriff's deed made to the lot and to remove cloud from the title to the same and to recover damages, actual and exemplary, for the levy of a writ of attachment on the lot. The court sustained a demurrer to the claim for damages, and that was not an issue in the case. The Scottish American Mortgage Company, Limited, besides its answer, sought, upon the facts alleged, to recover the title and possession of all the lot in suit, or, in the alternative, "the house and the lot in the S.E. corner of the same."
It appears that on December 4, 1926, A. G. Mathis, who was the legal owner conveyed by warranty deed to P. W. Milner a certain piece of land described as follows: "Situated in Titus County and within the city of Mt. Pleasant, Texas, being a part of the L. Gilbert survey, about 400 yards east of the court-house within said city and beginning at the N.E. corner of J. M. Badt's lot, now owned by B. B. Garrett; thence North 43.3 varas a rock for corner of the E. B. line of the original Swint lot; thence west 200 feet a stake in Swint's line; thence south 43.3 varas a stake; thence east 200 feet to the place of beginning, and being off of the original Swint lot."
There were two houses on the lot; one of them consisting of four rooms, each 14 feet square, and the other one being described as "considerably larger than the other." The four-room house was located on the southeast corner of the lot, facing east; and the larger house was located on the northeast corner of the lot, facing east. There is a public street on the east, running north and south. The two houses were about eight feet apart. There was a fence on the north, west, and south sides of the lot, but none on the east side in front of the two houses. There was no fence between the two houses, but there was a fence across the lot north and south back of or on the west of the two houses. The fence back of the houses was built by Mr. Milner after he purchased the lot. The part of the lot back or west of the houses was used as a garden and as a lot for stock, with a partition fence between the garden and lot. The garden spot was located just behind the four-room house. There was a well of water between the two houses.
The appellant levied a writ of attachment on the lot on March 14, 1927, after the purchase by P. W. Milner on December 4, 1926. The appellant thereafter became and was the purchaser of the lot under sheriff's deed in virtue of the sale under a judgment of the court.
The use and occupancy of the lot was testified to by P. W. Milner, and his testimony was undisputed, as follows: "That deed was to me from A. G. Mathis. I bought and paid for that property. I have lived on that property close to five years. I was living there When I bought it and when the deed was made to me on December 4, 1926. I had lived on the place — my wife, my daughter and myself — for about two and a half years before the time the deed was executed to me. We have lived there continuously ever since. The lot has two houses on it. I live in the big house. I bought the property for the purpose of using all of it for my home. I haven't any home anywhere else. When I bought the property I was aiming to run a rooming-house. I was going to build a room between the two houses and join them together so that I could have the whole business together. I was fixing to do that — to borrow the money to do it — when this suit was brought up. I didn't have the money to do it. I discussed with my wife and family, just before I bought the place and just after I bought it, about consolidating the two houses. I aimed to join the little house to the bigger house and make a rooming-house, because we were already running a rooming-house and needed more room. * * * Mr. Fullerton and B. Blackwell were living in the little house when I bought the place. Mr. Blackwell staid in the little house some 15 or 16 months after I bought it. Jim Kimberlin then moved into it in June, 1928. I bought the property in 1926, and Blackwell lived in the house for sixteen months after I bought it; and as soon as he moved out Jim Kimberlin moved in. They were paying me rent for that little house. No member of my family has ever lived in that little house, but they would have done so if we hadn't got it tied up. * * * I had talked to some one about borrowing the money to consolidate those two houses. I talked to Arthur Mitchell. * * * There is a garden connected with the house I lived in. I cultivated that garden myself; I have been doing that ever since I bought the place. When I bought the place I fenced the garden. The people in the little house get some of the things out of the garden. Sometimes their children help me, and I give them vegetables. Jim Kimberlin's children help me; they are twelve and fourteen years old. Those houses have open toilets. The toilet that serves the little house is between the house and the garden, and the one that serves the big house is back of my barn. Each house has a separate toilet. We do not have a separate garden."
Mrs. Preddy, daughter of P. W. Milner, testified substantially as her father did. She stated, as far as material to copy, that "I lived with my father and mother until I married. I still live there and take care of them. At the time my father bought the place, and about the time the deed was made, I heard my father make a statement about what he was going to do with those two houses on the lot. He said he was going to borrow money and combine both of the houses into one house and run a boarding and rooming-house. He said if he couldn't get the money to do that he would let it stay there and use it for somebody to live in to take care of him and Mother."
There was no conflict in the evidence. The case was submitted to the jury on the following issue: "Do you find from a preponderance of the evidence that the plaintiff intended on March 14, 1927, and prior thereto to build a room connecting the two houses for the purpose of using and occupying the structure when so remodeled as his home? Jury Answer: "Yes."
Judgment was entered annulling and canceling the sheriff's deed and decreeing title and possession of the lot in P. W. Milner.
The appellant objected to the evidence given by the appellee and his daughter to the effect that the appellee stated to his family when he bought the property that he was going to borrow money and combine the two houses into one house to be used as a boarding and rooming house. The appellant requested a peremptory instruction, which was refused. Complaint on appeal is made by the appellant of the above rulings.
J. A. Ward, of Mt. Pleasant, for appellant.
H. G. Brown, of Mt. Pleasant, for appellee.
It is insisted by the appellant that the evidence conclusively established that the portion of the lot on which the smaller house was located was not exempt from forced sale as a part of the homestead, but was subject to seizure and sale. It is well settled that one may as absolutely and clearly abandon a portion of a lot which constitutes the homestead, if the same be done in good faith, by acts certainly evidencing such purpose, as he may abandon the entire homestead by ceasing to use it and never again occupying it as such. But the question is one of intention, to be gathered in each case from all the facts and circumstances. In the present case, considering all the facts and circumstances, it is believed that it may not be held as a matter of pure law that the appellee intended abandonment or discontinuance of use of the southeast portion of the lot for any homestead purpose. As appears, the appellee purchased the property as "a lot in the city of Mt. Pleasant," and there would be imputed to him the intention, in the absence of evidence to the contrary, to dedicate the entire lot to homestead use. The quantity of the property so purchased is entirely within the constitutional limit of a homestead. There were two houses upon the lot, about eight feet distant from each other; and at the time of the purchase of the lot the appellee and his wife immediately began the actual use and occupancy of the larger house. They also used the garden and the barn lot. But the smaller house, being at the time of the purchase rented, continued to be occupied by the tenant until the levy of the attachment on March 14, 1927, some three months after the date of the purchase. As explained, however, by the appellee, the renting of that house to the tenant was intended to be a temporary matter until such time as he could obtain money with which to consolidate the two houses into one building. His purpose in consolidating the two buildings into one was to add more room for boarders and roomers. And as acts of preparation therefor, as further appears from the evidence, the appellee and his family "discussed about consolidating the two houses," and the appellee "talked to Mr. Arthur Mitchell" about borrowing the money to pay for the required work and cost of uniting the two buildings. Thus there appears the fact of the actual occupation of the greater portion of the lot and the fact of expressed intention and some effort of preparation of occupancy of the smaller portion. In these circumstances the appellee was entitled to a reasonable time after the purchase of the property within which to take over the actual occupancy of the smaller house by uniting it with the larger one as proposed to be done by him. After the levy of the attachment, and throughout the time of the litigation, the cessation of the preparations to unite the two houses could not be accounted as a conclusive act of abandonment or discontinuance of homestead claim in the smaller house, as the appellee had the right to await the termination of the litigation in respect to the homestead claim. The abandonment of intention of actual occupancy of the smaller house could not be predicated, therefore, conclusively and unmistakably, merely upon the temporary renting as here shown for some three months' time before the levy of the attachment. The portion of the lot on which the smaller house was located was not made a distinct and separate part of the entire lot by a division fence, as appears in the following cases: Andrews v. Hagadon, 54 Tex. 571; Oppenheimer v. Fritter, 79 Tex. 99, 14 S.W. 1051; Adkins-Polk Company v. Rhodes (Tex.Com.App.) 24 S.W.2d 351. In the case of McDonald v. Clark (Tex. Sup.) 19 S.W. 1023, the renting of the house was of a permanent and not temporary character. The factual element of permanent renting differentiates that case from the present one. It could be said as a matter of fact in the present case that the renting of the house was merely temporary, and that discontinuance or abandonment of use for any homestead purpose was not intended.
We are of the opinion that the trial court correctly refused a peremptory instruction to the jury and did not err in admitting the evidence complained of.
The judgment is therefore affirmed.
On Motion for a Rehearing.
Our conclusion under the evidence is, as before, that the jury could have arrived at the verdict that the small house on the lot was not put to uses and purposes inconsistent with a claim of homestead and that there was not unreasonable delay in actual occupancy. The circumstances do not so conclusively show as to warrant the holding, as a pure matter of law, that the acts and conduct of the appellee evidenced an intention of relinquishment or abandonment of the homestead exemption as to the small house. Therefore the court correctly refused to give the peremptory instruction. It was plainly shown that the whole lot was adapted to the use as a homestead and the appellee purchased it for the purpose of making it his home. Beginning with the very day of the purchase of the lot, and at all times afterwards, the appellee and his family were in actual, physical possession and use of the large house and all the lot except the portion occupied by the small house, with the intention of making the premises his home. This actual, physical occupancy with the intention of making the premises a homestead fully met, as is conceded, the mode of acquiring and establishing a homestead exemption to date from the acquisition. In this view the sole question is, Does the mere fact that the other house was rented and in the occupancy of the tenant operate to defeat, as a matter of pure law, the right to claim such portion of the lot as a part of the homestead? Undoubtedly, under the established rule, the appellee had a reasonable time in which to occupy or use it for the purpose of a home. Speer on Marital Rights in Texas (3d Ed.) § 460, p. 552. There was not unreasonable delay in actual occupancy under the circumstances. The attachment levy was made within about ninety days after the purchase of the lot. There was intention accompanied by preparation to make it a part of the dwelling house. Appellee made efforts to borrow money enough to consolidate the two houses as one and use it for a dwelling. Any temporary renting would not defeat the homestead right. Section 51, art. 16, Const. And whether the renting was intended to be temporary or not was a matter for the jury to determine in the light of all the circumstances.
In the case of McDonald v. Clark (Tex. Sup.) 19 S.W. 1023, relied on by the appellant, the facts show that the house in the northeast corner of the lot was continuously rented to Mr. Mattox and he was in actual occupancy of the same from 1885 to 1890, some five years. In virtue of such long-continued rental of the house, and delay in actual occupancy, the trial court concluded that the primary and chief use of that portion of the premises was for the purpose purely of gain and profit. The trial court's conclusion was upheld on appeal as fully warranted. The facts of the present case are different and do not show such unreasonable delay in occupancy or intention of occupancy. The small house was not distinct or separated from the larger one as in the cases of Andrews v. Hagadon, 54 Tex. 571, Oppenheimer v. Fritter, 79 Tex. 99, 14 S.W. 1051, 1052, and Adkins-Polk Co. v. Rhodes (Tex.Com.App.) 24 S.W.2d 351. In the present case there was a frontage on the street east and west of 43.3 varas. The two houses 8 feet apart occupied the 43.3 varas fronting the street. There was no fence between the houses. In the Andrews Case, supra, it is recited: "The evidence establishes that for twenty years prior to the execution of the trust deed, the lot in controversy had been separated from the other two by a partition fence." The intention of relinquishment of homestead right was conclusively presumed in that case because of the segregation of the two lots. In the Oppenheimer Case above there was not one lot, but two lots, "with a fence running through the lots." Also in that case is the fact that "the houses had been rented for about 14 years, all the time, when a tenant could be found to take them." Such acts were held conclusive of the intention to separate the premises and to occupy and use only a given portion as a homestead. In the Rhodes Case, supra, the dwelling house stood on one lot, and the garage, wash rack, and driveway were located on a portion of the "adjoining lot" and "were segregated from the family home." There was unequivocally shown in that case use in part for other purposes than homestead. All of these cases cited, and to which others could be added, are in line with the weight of authority to the effect that, if there is unreasonable delay in actual occupancy of the other house on the lot, or the other house is so made distinct and put to use entirely for other purposes such as will stamp it with the character of a place of business or purposes other than a home, such facts will necessarily defeat the homestead claim.
The motion for a rehearing is overruled.