Pierce v. Langston , 193 S.W. 745 ( 1917 )

Being unable to agree with the majority opinion in this case, I here state my reasons for dissent.

The undisputed evidence herein shows that appellee Langston had purchased and resided upon with his family as his home a tract of land in Coryell county As a consideration for the purchase of this land, he executed vendor's lien notes, and assumed the payment of other vendor's lien notes then outstanding against it. These notes in their aggregate exceeded the value of the land. They became due; he tried to get the time of their payment extended, but was unable to do so. He was unable to pay the indebtedness against the land. As early as July, 1915, he offered to deed the land to the holder of one of these notes, without other consideration than being relieved of the indebtedness against the same. This offer was refused. Both Langston and his wife then determined to abandon this land as soon as they could purchase another home. His only means to procure funds for such purchase was to sell his cows. This he did, and on September 1, 1915, purchased an improved tract of land in Comanche county with the bona fide intention, both of himself and wife, to move upon the same as soon as they could get possession of it. By reason of the fact that it was occupied by a tenant of their grantor under a rental contract, they could not get possession before January 1, 1916. Both Langston and his wife regarded the Comanche county land as their home from the date of its purchase, and intended to leave the Coryell county land and move onto the Comanche county land as soon as they could get possession. Before that time, to wit, on December 24, 1915, the appellant, who was the owner and holder of the vendor's lien notes executed by Langston for the Coryell county land, and who had brought suit on the same, caused a writ of attachment to be levied on the Comanche county land. About the 1st of January, 1916, Langston occupied the Comanche land himself, with a portion of property. His wife did not accompany him, on account of inclement weather at that time, but for which she and her children would have moved upon the Comanche county land as soon as possession thereof could have been obtained. Prior to the levy of the writ of attachment Langston had made improvements on the Comanche county land sufficient to have dedicated the same as his homestead, if he did not at that time have another home.

It is well settled in this state, as well as in other states having homestead laws similar to ours, that actual occupancy is not necessary to impress the homestead character upon land, provided the acts of the party are sufficient to show his bona fide intention to occupy the land as a homestead, and a sufficient excuse is shown for his delay in doing so. Cameron v. Gebhard, 85 Tex. 610, 22 S.W. 1033, 34 Am. St. Rep. 832; Franklin v. Coffee, 18 Tex. 413, 70 Am.Dec. 292; Moreland v. Barnhart,44 Tex. 280; Railway Co. v. Winter, 44 Tex. 611; Barnes v. White,53 Tex. 631; Brooks v. Chatham, 57 Tex. 33; Swope v. Stantzenberger,59 Tex. 390; Gardner v. Douglass, 64 Tex. 76; Dobkins v. Kuykendall,81 Tex. 183, 16 S.W. 743; Wilkerson v. Jones, 40 S.W. 1047; Wolf v. Butler, 8 Tex. Civ. App. 468, 28 S.W. 51.

The case of Gardner v. Douglass, supra, is on all fours with the instant case, except in that case Gardner did not own any land other than that which was in controversy. It is upon this distinction, together with the fact that the Coryell county land had formerly been the homestead of Langston, and that he was till occupying the same, that the majority of this court base their decision. In the majority opinion it is said that where the homestead character has once been fixed upon land, it is not changed, so long as the owner continues to occupy the same as such. With this I agree, but I deny that Langston continued to occupy his former homestead as such. If so, it is because the law deduces such fact from the mere fact of occupancy, and against the undisputed testimony of the occupants that such was not the character of their occupancy, but that their present and fixed intention was to make the Comanche county land their home, and that they remained upon the Coryell county land for the sole reason that they were not, at that time, able to get possession of the Comanche county land.

Mere occupancy of land which one owns, unaccompanied with the intention of making it a dwelling place, does not constitute such land a homestead. For example: Suppose a farmer owns and resides upon a farm as his home. He moves to town for the purpose of educating his children, with the intention, when that object is accomplished, of moving back to his farm; but, instead of renting a residence in town, he buys one and occupies it with his family, renting his farm in the meantime. We apprehend that no one would contend that, under such circumstances the farm had ceased to be his homestead. Yet such would be the fact if his town residence had become his home, for one cannot have two homes at one and the same time. And if actual residence upon land which one owns of itself constitutes such land a homestead, the town residence would be the farmer's homestead.

Now, if it is the law — as it clearly is — that occupancy is not necessary to fix the homestead character upon land, and that actual residence upon land which one owns does not necessarily constitute it a homestead, what is it that gives the land its homestead character? My answer is, it is the intention, coupled with occupancy, or abandonment of occupancy, as a homestead, as the case may be, or evidenced by such acts as in law will be deemed equivalent to present occupancy or abandonment of occupancy for homestead purposes. Neither occupancy nor abandonment of occupancy alone is sufficient. It is the intention that governs.

In Cameron v. Gebhard, supra, Mr. Justice Brown, after citing numerous decisions to the effect that actual occupancy is not necessary to fix the homestead character upon land, says:

"From these decisions it is apparent that intention is almost the only thing that may not be dispensed with in some state of case; and it follows that this intention in good faith to occupy is the prime factor in securing the benefits of the exemption. Preparation — that is, such acts as manifest this intention — is but the corroborating witness to the declaration of intention, the safeguard against fraud, and an assurance of the bona fides of the declared intention of the party."

The law wisely requires such corroborating testimony for the prevention of fraud, but it is the fact established by such corroborating testimony that determines the homestead character. What fact? The present, fixed bona fide intention. The corroboration required by the law in this regard is analogous to that required to convict of perjury, or upon the testimony of an accomplice. It is not the corroborating testimony which constitutes the offense of the accused, but it is the commission of the illegal act which such corroboration establishes. And so it is not the acts of preparation to move upon land which constitutes such land the homestead, but it is the fact which such preparation evidences, viz.: the intention or the party.

And so, if the fact that a man actually occupies with his family land which he owns does not, if unaccompanied with the intention to permanently dwell thereon, make such land his homestead (as I have above illustrated in the case of the farmer who moves to town temporarily for the purpose of educating his children) then why should continued residence upon land which had formerly been one's homestead, unaccompanied with the intention to then occupy it as a homestead, continue such homestead character against the intention and desire of the occupant? I think that when the declared intention to abandon as a homestead land upon which one resides is accompanied with such corroborating circumstances as to satisfactorily establish the bona fides of such intention, such land then and there ceases to be the homestead of the party asserting such intention, though the actual possession of such land is not at that time abandoned.

Suppose in the instant case Langston had sold the Coryell county land with the intention to move upon the Comanche county land and occupy it as a home, and had evinced such intention by the acts shown in this case. Undoubtedly, under the finding of the jury herein, which was that the Comanche county land was his homestead, it would be our duty to affirm the judgment entered herein in accordance with such verdict. Why? Not because he had abandoned the possession of his former homestead in Coryell county, for in the supposed case he would not have done so, but because it had ceased to be his homestead, notwithstanding his continued occupancy of the same. Why did it cease to be his homestead? Because he had sold it? Not necessarily so; for one may have a homestead in a leasehold estate (Wheatley v. Griffin, 60 Tex. 209; Phillips v. Warner, 16 S.W. 423), but because the sale under such circumstances would have been conclusive proof that it had ceased to be his homestead, notwithstanding his continued occupancy. But I do not think that this is the only evidence by which such fact may be established. I think that the evidence of this case clearly established the fact that appellees had abandoned the Coryell county land as their homestead before the levy of the writ of attachment on the Comanche county land. It is said that appellees might have changed their intention to move off of the Coryell county land. And so, if they had moved off of it and onto the Comanche county land, they might have changed their mind and moved back onto the Coryell county land. But by so doing they would not have continued the Coryell county land as their homestead, but only have again established it as such; and, if in the meantime a creditor had secured an execution or attachment lien, their subsequently acquired homestead rights would not have defeated such lien.

It might be more difficult to prove that one had abandoned a former homestead for another before he had moved off one and onto the other, but the difficulty of proving a fact does not alter the value of such fact, when it is established in a manner sufficient to meet the demands of the law.

The majority opinion herein cites the case of Archibald v. Jacobs,69 Tex. 251, 6 S.W. 177. That opinion, as stated by Judge Brown in Cameron v. Gebhard, supra, sustains the proposition that actual residence is not, in all cases, necessary to a homestead right. In that case the evidence was not sufficient to prove that Jacobs had dedicated the lot in controversy as his homestead. The majority opinion also cites Powers v. Palmer. 36 Tex. Civ. App. 212, 81 S.W. 818, which is in point against the views herein expressed, but I do not think the decision, under the facts of that case, is sound.

I think that under the undisputed facts of this case, the judgment of the trial court should be affirmed.