Andrews v. Hagadon , 54 Tex. 571 ( 1881 )

Watts, Commissioner.

The questions involved in the decision of this case are these:

1st. Was the lot in controversy part of the homestead of Alexander Edgar and wife at the time of the execution of the trust deed by Thos. Edgar?

2d. Was there any constituent member of the family of Alexander Edgar and wife, at the time of their death, to whom the homestead right descended?

3d. Was the hen on the land released by reason of appellee’s extending time to Thos. Edgar?

Alexander Edgar purchased lots 5, 6 and 7,. block 378, in the city of G-alveston, about 1812, and had a residence upon lot 7, outhouses on lot 6, and cultivated a garden on lot 5, from thence until 1853, when he built a house on the latter, and segregated it from the others by a partition fence, and rented the same from that time until 1875. In 1861 he and his wife left the city and went to Chambers county; there lived on the farm of their son-in-law, Andrews, until their death in 1875. In 1873 they authorized their son, Thomas Edgar, by a power of attorney, to secure a loan of money for his own benefit, by giving a mortgage or deed of trust upon lot 5. The appellee, Mrs. Hagadon, loaned him $2,000 on the 1st day of September, 1873, and took his individual note therefor, payable twelve months after date; and to secure the same, he executed, as agent under power of attorney, a trust deed on the lot to Thos. M. Joseph as trustee.

The appellants claim that the lot constituted part of the homestead of Alexander Edgar and wife at the time the trust deed was executed thereon.

A homestead in a city, town or village may consist of one or more lots, but there is nothing in our constitution or laws that forces the homestead character or quality upon a lot or lots adjoining the one upon which the residence is situated. Whether such lot or lots are part of the homestead, is a question of fact to be determined by the evidence, and there are two requisites that must concur to give them this quality: the owner must intend the property as part of his homestead, and must in some way use it as such.

In this case 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; that during that time it had a dwelling house situated thereon'and was rented to other parties. As said by the constitution, a temporary renting of the homestead shall not change the character of the same, when no other has been acquired. Whether by residing elsewhere, and renting the homestead for twelve or fourteen years, would or would not work an abandonment thereof, notwithstanding the parties had acquired no new homestead, is not necessary for us to decide. But the question is, was lot 5 any part of the homestead at the time the trust deed was executed? Andrews swears that Alexander Edgar and wife claimed it as such, but when or how this claim was made, whether openly or covertly, is not shown. But there is one fact established by the evidence to a degree of certainty beyond cavil, and that is, it had not been used by them for homestead purposes for more "than twenty years prior to the execution of the trust deed. During that entire time it was in the possession of tenants, and not one act is shown during the time upon the part of said Alexander Edgar and wife that would indicate to the public that the same constituted a part of their homestead. After hearing all the evidence the court found against the appellants, and we are not prepared to say but that the finding was amply sustained by the evidence. See Peregoy v. Kottwitz, decided at this term of the court.

I am individually of the opinion that, taken in connection with the other circumstances of the case, the fact that Alexander Edgar and wife, by power of attorney duly executed, selected out that lot from the others, and empowered their attorney or agent to secure a loan by executing a deed of trust .or mortgage thereon to secure the payment thereof, ought of itself to be considered as a potent circumstance in determining the character of the property.

The evidence discloses the fact, that at the time of the execution of the trust deed, and for twelve years prior thereto, Alexander Edgar and wife were residing with their son-in-law, Andrews, upon his. farm in the county of Chambers, and that their children were all married.

No legal or moral obligation is shown by the evidence, upon the part of Alexander Edgar and wife, to support their married children, nor is any corresponding state of dependence shown thereby on the part of these married children for such support from their parents. On the contrary, it is shown that they were not living with their parents on the homestead in Galveston. The record clearly shows that they were not constituents of the family of their parents at the decease of the latter, and therefore were not entitled to the homestead protection as such. Howard v. Marshall, 48 Tex., 478; Roco v. Green, 50 Tex., 490.

Appellants claim that as to the note, Alexander Edgar and wife occupied the position of sureties, and that appellee had released and waived the trust deed or hen upon ■ the lot, by an agreement with Thomas Edgar extending him time upon the note for a valuable consideration, without the consent of the other parties. The evidence shows that Thomas Edgar paid to appellee one hundred dollars, the same being accrued interest on the note, and that she promised therefor to give him time on the note. We think it exceedingly questionable whether the rule of suretyship could be applied to a case like the one before the court. But admitting that it could be done, the evidence shows that there was no consideration for any supposed promise upon the part of appellee to extend time on the note. He only paid what he was justly and legally bound to pay. It is well settled that there must be some independent consideration, other than the mere payment of part of the note, to support such a promise. Hunter v. Clark, 28 Tex., 162, and authorities there cited.

The objection that appellee delayed so long in commencing this suit that the said hen was lost or waived, is not well taken. The note was not barred by the statute of hmitations, and we know of no reason why a delay in bringing the suit should otherwise work a loss of the lien.

We are of the opinion that there is no error in the judgment, and that it ought to be affirmed.

Affirmed.

[Opinion delivered March 28, 1881.]