Johnston v. Martin

HENRY, Associate Justice. This suit was brought by the appellee to recover the amount of a promissory note and to foreclose a deed of trust made by appellants to secure it. The appellants pleaded that the land conveyed by the deed of trust was their homestead. The cause was tried by the court without a jury, and the following findings of fact were filed by the judge: “At the time of the execution of said note and deed of trust defendant did not occupy the land in controversy, but at said time he and his wife occupied a house in the town of Brownwood, which said house belonged to defendant and was used by him as a place of business as well ás a residence; and further, that said house was situated on land which was leased by defendant for a term of five years, of which two and one-half years had expired. At the time of the execution of said note defendant had inclosed the land in controversy and had built thereon a fish pond, or water tank, and had put fish therein. He had also cleared away a spot of land upon which to build a house and had placed thereon certain stones for a foundation thereof. He had also expressed an intention of making said land a home for himself and family. Ho other steps were taken by the defendant toward making said land his home until more than one year after the execution of said note. He then *21 planted some trees on said land, and about five months thereafter he built a house which he has since used as a home for himself and family.” The court concluded that at the time of the execution of the deed of trust the land was not entitled to exemption as a homestead, and gave judgment accordingly. The defendant proposed to testify that at the date of the execution of the deed of trust he owned no homestead except the land in controversy. The evidence was objected to and excluded. The witness had been permitted to testify to the facts. The excluded testimony was merely his own conclusion, which it would have been error to admit. The defendant also proposed to testify that the land was purchased by him “for the purpose alone of ahorne for himself and his family,” and that prior to the execution of the deed of trust he and his wife went upon the land “and mutually designated and set apart said tract of land as their homestead by examining the same and by agreeing between themselves that the same should become their future homestead,” and that “it was their intention at the time of the'execution and delivery of the said deed of trust to make a homestead out of the tract of land upon which it was given.” To whatever extent the excluded evidence was not liable to the objection that it was a statement of a conclusion of the witness instead of the facts upon which such conclusion was predicated, it must be held to have been properly rejected because it was immaterial. The facts found by the court that the defendant owned a house situated in a town and upon land which he held a lease for, in which he resided and conducted his business, precluded his acquisition of a homestead in the country by the performance of the acts and with the intention claimed by him to have- existed. We think that if all of the acts with regard to the land in controversy, as well as the purpose or intention of the defendant with regard to making it his future place of residence, be admitted, it still must be held that the house that he was occupying in town was beyond controversy exempt as a homestead. He could not have two exemptions at the same time. It is not necessary for us to hold, and we do not now decide, that if he had owned no homestead in town the proof was not sufficient in other respects to attach the exemption claimed to the land in controversy. We find no error in the proceedings, and the judgment is affirmed. Affirmed. Delivered May 8, 1891.