Commerce Farm Credit v. Sayles , 279 S.W. 567 ( 1926 )

It appeared from testimony heard at the trial that the 180 acres of land referred to in the statement above was situated in Lamar county, about 20 miles from the city of Paris. For many years prior to September 15, 1916, appellees and their children resided upon and used said 180 acres as their homestead. On said September 15th appellees purchased a tract of about 1 acre, to which they removed, and where they thereafter resided, and were residing in October, 1919, when they executed the instruments referred to in said statement. In the deed conveying the acre tract to appellees same was described as "on the north side of Bonham street in the city of Paris," but, as a matter of fact, it was situated about 200 yards west and outside of said city as incorporated.

Whether the 180 acres had ceased to be, and the acre tract instead had become, appellees' homestead at the time they executed the trust deeds referred to in said statement, were questions in the case. If the 180 acres had not ceased to be homestead at that time, the trust deeds were void by force of section 50 of article 16 of the Constitution.

Appellants contended that the acre tract was "in a town or city" (Paris), within the meaning of section 51 of said article of the Constitution, and that, when appellees purchased and moved to it, it became, and the 180 acres ceased to be, homestead, and was not their homestead at the time they executed the trust deeds. On the other hand, appellees contended that the 180 acres never ceased to be their homestead, that the acre tract was not "in a town or city," but was in the country; and that, when they purchased and moved to it, it became a part of their rural homestead.

The court instructed the jury that the acre tract "was not in the city of Paris," and that it was not "within a town or village" within the meaning of the Constitution. After telling the jury that "the homestead of a family not in a city, town, or village shall consist of not more than 200 acres of land which may be in one or more parcels or tracts with the improvements thereon," the court instructed them further that —

"If such land or lands is not in a city, town, or village, and is composed of different tracts, then in determining whether any particular tract is the homestead or part of the homestead of the family the question is determined by the character of the use or purpose for which the tract is used. If the lands are resided upon by the family as a home, or if the same is being used or appropriated for the purpose of the support and maintenance of the family, and does not altogether exceed 200 acres, then the same would be the homestead of the family."

Appellants objected to the instructions in so far as they told the jury that the acre tract was not in the city of Paris nor within a town or village, on the ground that same was on the weight of the evidence, and complain here because the court overruled their objection and refused a special charge they requested, which, had it been given, would have left it to the jury to determine whether said acre tract was in a city or town or not.

It has been held (when the question was as to whether a homestead was urban or rural) that the fact that the land was within the limits of a town or city as incorporated did not establish conclusively that the homestead was urban, nor did the fact that it was outside such limits establish conclusively that it was rural. Lauchheimer v. Saunders,97 Tex. 137, 76 S.W. 750; Wilder v. McConnell, 91 Tex. 600, 45 S.W. 145. Whether it is the one or the other in a given case may be a question of fact for a jury or a question of law for the court. If, quoting from the opinion of the court in Jones v. Bank (Tex.Com.App.) 259 S.W. 157, "reasonable minds could not differ as to whether it [the land] is a rural or an urban homestead, the question as to its character is a matter of law."

Applying that test here, we think it appeared as a matter of law from the testimony that the acre tract was not in the city of Paris within the meaning of language used in said section 51 of the Constitution, and that the trial court, therefore, did not err when he so instructed the jury.

The testimony was that the acre tract was on the north side of Bonham street, and about 200 yards west of the west boundary line of the city of Paris as incorporated. With the exception of a dwelling house adjacent to said boundary line, there were no houses on the north side of said street between said acre tract and said boundary line, and for a mile or more on said side of said street west of said acre tract there were no houses, except a dwelling house adjoining said tract, and a little storehouse distant 150 to 200 feet from it. The only houses for a distance of a mile or more west of said boundary line on the south side of said street was a dwelling house about 300 yards west of said line, and two dwelling houses situated a short distance still farther west.

Appellants are not in the attitude of contending, it seems, that the acre tract and dwelling house thereupon and other houses near it, specified above, constituted a town or village. Their contention, as we understand it, is that the city of Paris had builded west beyond its corporate limits far enough to include the land on which said houses were situated, and that said acre tract in that way became a part of and was in the city of Paris within the meaning of the language used in said section 51 of the Constitution. But we think the existence of the open space of about 200 yards between said acre tract and said boundary line on the north side of said street, and the open space of about 300 yards between said boundary line and the nearest of the three houses on the south side of said street, conclusively established the contrary of that contention, for, as we see it, reasonable minds considering said open spaces could reach no other conclusion than that the city of Paris had not builded any distance west of its west boundary line as incorporated.

Another contention urged by appellants is that the instructions set out above were erroneous so far as they told the jury that different tracts of land, together not exceeding 200 acres, if not situated in a city, town, or village, may constitute the homestead, if they "are resided upon by the family as a home, or if the same is being used or appropriated for the purpose of the support and maintenance of the family."

The objection to the instruction was that it was on the weight of the evidence and misleading, in that it told the jury that land not in a city, town, or village, if "used or appropriated for the purpose of the support and maintenance of the family," might "constitute (quoting) the homestead or a part of the homestead, regardless of the residence of the family thereon." We are inclined to think the objection to the instruction should have been sustained (Gleed v. Pickett,29 Tex. Civ. App. 101, 68 S.W. 192), but think the error, if it was one, in overruling it should be treated as harmless, for we think it appeared as a matter of law from the testimony that appellees never ceased to use the 180 acres for the purpose of a home, and that they were using both that and the acre tract for such purposes at the time they executed the trust deeds. The testimony referred to was that, while appellees rented part of the 180 acres to certain of their children, when they moved to the acre tract they left a large part of their household goods and kitchen furniture in rooms they reserved in the dwelling house on the 180 acres; left their houses, cows, hogs, chickens, etc., on the land; cultivated and grew crops on a part thereof every year; and kept supplies of food for themselves stored in, said dwelling house, and for their live stock stored in other houses on the land. And, further, it appeared from said testimony that appellee Daniel S. Sayles actually resided upon the 180 acres during most of the time after he and his family moved to the acre tract; that his wife spent much of her time there; and that their unmarried daughter and minor son, constituting their family, passed some of their time there.

If the conclusion that it appeared as a matter of law that the 180 acres was a part of appellees' homestead at the time they executed the trust deeds is correct, then said deeds were invalid (section 50, art. 16, of the Constitution), and the court below did not err when he refused to give any effect to them, unless it appeared that appellees were estopped from setting up the fact that the land was homestead as against the foreclosure sought by appellants. The contention of appellants that it so appeared is based: (1) On testimony showing that in their written application for the loan, and in the trust deeds, appellees represented as facts that, while the 180 acres had been their homestead, they had abandoned its use as such, that it was not then a part of their homestead, and that the acre tract, on which they then resided, was their homestead; and (2) on testimony showing that by an instrument in writing executed by them at the times they applied for the loan appellees designated the acre tract as their homestead, describing same by metes and bounds, and as in "Paris, Tex.," and representing that they were then "using and occupying the same (quoting) as our homestead, and that no other property constitutes any part of said homestead." The jury determined to the contrary of appellant's contention on issues submitted at their (appellants') request when they (the jury) found that the credit company did not rely on the truth of said representations and was not induced thereby to make the loan evidenced by the $10,000 note, and that the insurance company did not rely on, and was not induced by, said representations to purchase said note, and when they further found that the Commerce Trust Company and Mrs. Kemper, when they, respectively, purchased the $8,500 note, did not rely on, and were not induced by, said representations to purchase that note. Bank v. Bielharz, 94 Tex. 493,62 S.W. 743; 2 Pomeroy's Equity, § 812, p. 1669. For anything to the contrary appearing in appellants' brief, they made no effort in the court below to have the findings just referred to set aside, and they are not attacking same here by any of the assignments in their brief. Hence we are bound to give effect to said findings. Doing so, we must affirm the judgment, for, if the 180 acres was homestead, as we have determined it was, and if appellees were not estopped from so asserting as against the foreclosure sought by appellants, as determined by the jury, the judgment is not erroneous.

In that view of the case it is not necessary to decide other questions presented by assignments in the record.

The judgment is affirmed.