Grimes v. Cline , 300 S.W. 235 ( 1927 )

^* Writ of error dismissed for want of jurisdiction February 22, 1928. It is settled law in this state:

That premises occupied by a family may be exempt to them as a homestead, whether such occupancy be by the family as owners of the fee or a less estate, or as lessees or renters for a fixed term or at the will of the owner. Wheatley v. Griffin, 60 Tex. 209; Williams v. Withered, 37 Tex. 130; Cullers v. James, 66 Tex. 494, 1 S.W. 314; Phillips v. Warner (Tex.App.) 16 S.W. 423; Anheuser-Busch Brewing Ass'n v. Smith (Tex.Civ.App.) 26 S.W. 94; Bank v. Cruger, 31 Tex. Civ. App. 17,71 S.W. 784; Birdwell v. Burleson, 31 Tex. Civ. App. 31, 72 S.W. 446; Ellis v. Bingham (Tex.Civ.App.) 150 S.W. 602; First Nat. Bank v. Dismukes (Tex.Civ.App.) 241 S.W. 199; Cry v. I. W. Bass Hardware Co. (Tex.Civ.App.) 273 S.W. 347; Collett v. Brokaw (Tex.Civ.App.) 296 S.W. 333.

(2) That premises which have become homestead continue such as long as the family occupying them own same; or, if they are not the owners thereof, so long as they have a right to occupy same; or until they have moved from and abandoned the premises as a home. Archibald v. Jacobs,69 Tex. 248, 6 S.W. 177; Johnston v. Martin, 81 Tex. 18, 16 S.W. 550; O'Brien v. Woeltz, 94 Tex. 148, 58 S.W. 943, 59 S.W. 535,86 Am. St. Rep. 829; Clem Lumber Co. v. Elliott Lumber Co. (Tex.Com.App.)254 S.W. 935; Teller v. Fitch (Tex.Civ.App.) 281 S.W. 893.

(3) That, once acquired, a homestead can be abandoned in no other way than by moving from the premises with the intent to abandon same as a home. Powers v. Palmer, 36 Tex. Civ. App. 212, 81 S.W. 817; Pierce v. Langston (Tex.Civ.App.) 193 S.W. 745; Sharp v. Johnston (Tex.Sup.)19 S.W. 259; Bayless v. Guthrie (Tex.Com.App.) 235 S.W. 843; Staten v. Harris (Tex.Civ.App.) 239 S.W. 334; Clem Lumber Co. v. Elliott Lumber Co. (Tex.Com.App.) 254 S.W. 935.

(4) That a family cannot have more than one residence homestead at one and the same time. Johnston v. Martin, 81 Tex. 18, 16 S.W. 550; Pierce v. Langston (Tex.Civ.App.) 193 S.W. 745.

Such being the law, we think the judgment was wrong, so far as it denied appellant a foreclosure of the attachment lien on 200 of the 253.4 acres levied upon, if the premises in Huntsville, known as the Simms Whitley place, became appellee's homestead, for the evidence was undisputed that appellee and his family, as tenants from month to month, had occupied the Whitley place for more than a year before, and were so occupying same at the time; the writ of attachment was levied on the 253.4-acre tract.

As we view the record, the judgment is sustainable, if at all, only on the theory that the trial court had a right to say that the Whitley place did not become appellee's homestead, unless he intended it should, and that it appeared from the evidence he did not so intend.

That the trial court had a right to say the Whitley place did not become homestead, unless appellee intended it should, we think is clear. Cameron v. Gebhard, 85 Tex. 610, 22 S.W. 1033, 34 Am. St. Rep. 832. In the case cited Judge Brown said:

"Intention alone cannot give a homestead right; but it is at the same time equally true that all other things combined cannot give it without the intention to dedicate it to the uses of a home."

That the evidence warranted the finding that appellee never intended the Whitley place to be his homestead we think is also clear, unless the occupancy and use thereof by him and his family should be held to have conclusively established his intent to be to the contrary. Did such occupancy and use have that effect? We think not. We know of no law declaring occupancy and use of premises as a home by a family to be conclusive evidence of an intent on the part of the head of the family to make such premises his homestead. No reason occurs to us why one who has purchased land, intending it to be his homestead, should be denied a right to claim it as such merely because he and his family occupied and used rented premises as a home until they could improve and move to the purchased land. To so hold, it seems to us, would often operate to defeat the purpose of the constitutional exemption, for a family living on rented premises could never purchase and improve land and hold it as their homestead against the claims of creditors.

The judgment is affirmed.