Gardner v. Douglass , 64 Tex. 76 ( 1885 )

Watts, J. Com. App.

With us an actual occupancy of the land is not, under all circumstances, an indispensable prerequisite in impressing upon it the homestead character.

But where there has been no previous occupation of the land as a homestead, then, to invest it with that quality, it has been held essential that there be an existing bona fide intention to dedicate the property as a homestead, and this intent must be accompanied with such acts of preparation and such prompt subsequent occupation as will amount to notice of the dedication, and thereby prevent this most valuable right from being converted into an instrument of fraud. Franklin v. Coffee, 18 Tex., 417; Barnes v. White, 53 Tex., 631; Brooks v. Chatham, 57 Tex., 33; Swope v. Stantzenberger, 59 Tex., 390.

In Brooks v. Chatham it is said: “There must be something more than mere intention; there must be some act done which will evince an intention to use it as a home.”

To the same effect is the case of Fort v. Powell, 59 Tex., 321, where it is in effect held, that, to invest property with the homestead characteristics, the use and intention must concur.

However, the questions now under consideration arise upon a state of facts altogether different from those passed upon in the several cases cited.

Here the property was purchased for a homestead, and with the intention to occupy it as such, just as soon as possession could be had. And in fact .as soon as the lease expired the patties promptly took possession, and have since that time been occupying it as a homestead. At the time of the purchase by appellants, the property was then occupied under a lease which expired about three months afterwards. It was then improved property, and no additional improvements are shown to have been necessary to render it habitable. Appellants then had no other homestead and did not own any other land.

In Edwards v. Fry, 9 Kan., 425, it is in effect said, that the purchase and occupation of the homestead are not ordinarily contemporaneous acts. It usually requires some time for the vendor to move out and the purchaser to move in. And the law will not ordinarily wait until all this has been accomplished, before clothing the property with the homestead exemption. But where the purchase is made for the purpose of a home, with a view of an early occupancy, which follows within a reasonable time, this may secure the homestead as such from the time of the purchase. Occupation, however, is an essential element to secure this protection.

And in Neal v. Coe, 35 Ia., 407, it is said, “while the intention is not alone sufficient to impress the homestead character, yet it may be considered in connection with the circumstances. Some time usually intervenes after the purchase of property before it can be actually occupied, etc.

“Under such circumstances great inconvenience might arise if the homestead character was made to depend upon the actual personal presence of the members of the family.”

It appears from the record that appellants purchased the property with the hona fide intention of occupying it as their homestead just as soon as they could get possession. They purchased the property for a homestead, and at the time owned no other land. The proceeds of their former homestead, which had been previously sold, was invested in this property.

It also sufficiently appears that the debt upon which the judgment in favor of Marx & Kempner was rendered against Gardner had been contracted before the purchase of the lot in controversy. Therefore this debt could not have been contracted upon the faith of the property; nor did Marx & Kempner advance any new consideration in the acquisition of the asserted lien.

As the appellants acted in the best of good faith in purchasing this improved property for a homestead, and upon the expiration of the lease took prompt possession and have ever since occupied it as such, under the facts and circumstances it must be considered that the occupancy followed the purchase in such reasonable time as would invest the property with the homestead quality from the time of the purchase, as to those who have not been deceived to their injury, because the acts and declarations of appellants as to the dedication of the property as a homestead had not been more positive and notorious.

Our conclusion is that the judgment of the court below is erroneous ; that it ought to be reversed and the supreme court here render such judgment as should have been rendered by the court below, viz.: That the injunction be perpetuated, and for costs against appellees.

Reversed and rendered.

[Opinion adopted April 29, 1885.]