Langston v. Maxey

Gaines, Associate Justice. Appellee brought this action to enjoin a sale under execution of a certain parcel of land in the city of Cleburne, which he claimed as a homestead. He was the head of a family and had his residence upon the western portion of the property described in his petition. Upon its middle and eastern parts there were two small residence houses, with some of the usual appurtenances, which were occupied by his tenants. The defendants below declared in their answer that the western portion of the property, being that upon which the plaintiff actually resided with his family, was embraced in their levy by mistake, and disclaimed all right to subject that to the payment of their judgment. They however alleged that the other parts of the land were not a part of the homestead, and were subject to sale under execution. There was a general verdict for the plaintiff and a judgment perpetuating the injunction as to whole property, and it is assigned that the court erred in not granting the motion for a new trial upon the ground that the verdict was contrary to the law and the evidence. From the plaintiff’s own testimony it appears that he bought the whole block in 1867 and enclosed it and built a residence upon it near the middle. He subsequently sold a lot off the east end and another off the west end, leaving the parcel in controversy, which extends about 210 feet north and south and about 205 feet east and west. He resided in the house near the centre of this parcel until 1878, when he built a new residence on the west portion, into which he then moved and where he has ever since resided with his family. For some time he rented the old house as a boarding house, and he and his family took their meals with the tenants. This house has been occupied by tenants ever since and was so occupied at the beginning of this suit. In 1879 he built another residence on the east part of the property, which he testified he built for the purpose of leasing it to tenants for the income to be derived therefrom. This house with its appurtenances had been leased ever since its construction and was occupied by a tenant when this suit was brought. The following is from a sketch made by appellee and offered in evidence, and shows the situation of the property at the time of the trial: [161] The property had never been subdivided by any survey, but fences had been erected, partly by the owner and partly by a tenant, between the parcels upon which the residences are respectively situated. The dwelling houses all fronted south on Willingham Street. In leasing the property the appellee reserved no rights in the rented premises; but the only cistern upon either parcel is on the line of the fence between the middle and west lot, and up to the time of the trial the appellee had used the cistern for the purpose of supplying drinking water for his family, except upon a few occasions when the water was exhausted. This cistern was constructed originally as an appurtenance to the first dwelling house. The case presented is strikingly similar to that of Newton v. Calhoun, in 68 Texas, 451. That case was tried below by the judge without a jury, and the court found in favor of the claim of homestead. In the opinion it is said: “Lots five, six, and seven were for a long time evidently the homestead of the family; and before either of them, while they continue under one common ownership, will cease to be a part of it, it must be applied to a use inconsistent with the uses for which the homestead is protected—to uses which clearly show an intention no longer to use it for purposes of a home. The court below was justified in holding that no such use was made of the lot; that there was no intention to abandon it as a part of the home and to rent it permanently; that it was in fact and in law a part of the homestead of the family. There was evidence, slight though it may have been, from which the court was authorized to find that while the houses on the lot were rented to others, the lot was more or less used all the time by the appellees and their family for home purposes.” The language quoted is strictly applicable to the middle lot in controversy. The appellee after moving into his new dwelling and after renting the old continued to use the cistern attached to the middle lot for the purposes of his family. We attach but little importance to the fact that the right to make use of the cistern was not reserved in the lease. The right appears to have been impliedly conceded, and under the circumstances it is to be presumed that if it should have been denied by any tenant at any time it would have been reserved in all future leases. The fact remains that although appellee by renting the lot may have parted with his strict legal right to use the cistern, he did continue to use it as an appurtenance to the dwelling house of himself and his family. This shows that he never intended wholly to abandon the use of it for domestic purposes. His way to the cistern was over the middle lot. But from the opinion in the case cited the principle is deducible that when the owner of a parcel of land in a town or city occupied by him as the homestead of his family permanently devotes a part thereof to a purpose inconsistent with its use as a part of his homestead, and permanently abandons such use, the parcel so set apart ceases to be a part of the home [162] stead. In this case the testimony of the appellee himself shows that he had built upon the east lot for the purpose of renting it as a place of residence and of thereby increasing his income. While there was no express division of the property into separate lots, the division fences erected by appellee himself, and by his tenant with his consent, are sufficient to mark the extent of the dominion of the tenants of the respective parcels and' to show the boundary of the east lot. Appellee’s testimony further shows that after the improvement and lease of the east lot he ceased to use it directly for any purpose whatever, and fails to show that he had an intention at any future time to devote any part of it to the domestic uses' of himself and family. This evinces a permanent abandonment of the use of the lot under consideration for homestead purposes. If' the head of a family by abandoning his residence upon a homestead once acquired, with the intention of never resuming it, may subject it to forced sale, although he may not have acquired another homestead, we think for a stronger reason it should be held that a part so abandoned ceases to he exempt from execution, although it may be contiguous to the remaining homestead of which it originally formed a part. We conclude that as to the east lot, as practically defined by its enclosures, the verdict of the jury is not sustained by the evidence, and that for this reason the court should have granted the motion for a new trial. What we have already said we think sufficient to indicate a proper charge upon another trial of the case, and we therefore deem it unnecessary to consider the assignment based upon the supposed error in the instruction of the court. For the error pointed out the judgment is reversed and the cause remanded. Reversed and remanded. Delivered May 28, 1889. Associate Justice Henry did not sit in this case.