Evans v. Fortner

WILLSON, O. J. (after stating the facts as above). Assuming, as he does in his brief, that it appeared from the testimony that the three lots purchased by him in 1892 became his homestead within the meaning of the Constitution (article 16, §§ 51, 52) and laws (3 Vernon’s Stat. art. 3786 ; 2 Vernon’s Stat. art. 3429), appellant insists that it did not appear that lot 3 and the part of lot 2 in question ever ceased to be a part of such homestead; and he further insists that the trial court therefore erred when he directed a partition of said lot 3 and part of lot 2 as prayed for by Mrs. Fortner. The assumption that the three lots when purchased by appellant, or that lot 3 and the part of lot 2 in question ever thereafterwards, became his homestead, is not authorized by anything we have found in the record. There was no testimony showing, or tending in the least to show, that appellant intended, when he purchased the three lots to subject them, or either of them, to use as a home, or that he ever afterwards intended to subject, or in fact did subject, lot 3 and the part of lot 2 in question to such use. On the contrary, it appeared from appellant’s own testimony as a witness, not only that he never used lot 3 and said part of lot 2 for the purposes of a home within the meaning of the Constitution (Blum v. Rogers, 78 Tex. 530, 15 S. W. 115; Heatherly v. Little, 21 Tex. Civ. App. 664, 52 S. W. 980; Wurzbach v. Menger, 27 Tex. Civ. App. 290, 65 S. W. 679), but that he, instead, shortly after he purchased same, constructed a dwelling house on said lot 3, and a few years later a dwelling house on said part of lot 2, which he ever afterwards rented to tenants. With reference to said houses he testified that he “had them to rent, and that was the purpose that I built them for — for me in my old age, and to make a support for me; that’s what I built them for exactly.” [1,2] The burden was on appellant to show that said lot 3 and said part of lot 2 became homestead at the time or after the time he purchased same. He could have discharged the burden in no other way than by proving, and he did not, “actual occupancy and use of the property as a homestead, or a present intention' to so use it, coupled with some acts indicating such intention.” Fisher, C. J., in Wilkerson v. Jones, 40 S. W. 1046. And see Crabtree v. Whiteselle, 65 Tex. 1ll; Cobb v. Collins, 51 Tex. Civ. App. 63, 111 S. W. 760; Johnson v. Burton, 39 Tex. Civ. App. 249, 87 S. W. 181. There is no error in the judgment, and it is affirmed. Footnotes [1] <gs»For other cases see same topic and KEY-NTMBER m all Key-Numbered Digests and Indexes