Ewing v. Riley

SMITH, J.

The judgment appealed from was based upon the conclusion .of the court below that the land in controversy was the homestead of G. I. Riley, the record owner thereof, and therefore not subject to attachment by a creditor. This holding presents the only material question in the case. If the property was in fact the homestead, the judgment must be affirmed; if it was not, the judgment must be reversed.

The record shows that prior to March, 1920, John W. Ewing owned and farmed a tract of 60 acres of land lying adjacent to, but wholly without, the corporate limits of the city of McAllen, in Hidalgo county. ' About this time there was a building boom in Mc-Allen, resulting ia extending the settled residential section to the city limits adjoining Ewing’s property. In response to the apparent opportunity, Ewing had his 60 acres surveyed and cut up into blocks and lots, streets and alleys, and platted into “Ewing’s addition to the city of McAllen.” The arrangement of the blocks, lots, streets, and alleys was made to conform to the general plan of the adjacent city. About this time Ewing sold to George I. Riley, in two transactions, about two-thirds of the property, amounting to a little more than 40 acres.. In the deeds of conveyance the property was described, not as acreage, or by metes and bounds, but by blocks and lot numbers, and these instruments contained certain building restrictions usual to modern urban residence additions, in which, among other restrictions, was a prohibition against the erection of dwellings costing less than $3,000, and requiring that such dwellings should not be erected unless the plans thereof were first approvéd by Ewing. When, under these conveyances, Riley obtained possession of the property, he proceeded at once towards placing it upon the market for sale. He had the plat of the addition recorded, thus dedicating it. He tore down the fences which had inclosed it. He" covered up the irrigation ditches which traversed it, and leveled off its surface. He laid .off and marked the lots and blocks with painted stakes. He had printed 150 abstracts of the title to the property, as well as a like number of blank “earnest money” contracts, each covering “lot -, block-• — , Ewing’s addition,” etc: He even entered into a contract to pave some of: the streets across the property. He offered the lots for sale, and sold a number of them. The building boom soon abated, however, and the, anticipated demand for Riley’s lots did not materialize substantially, and so, in the winter of 1920, and spring of 1921, he planted and cultivated crops on part of the land, using the balance for pasture purposes. In the early spring of 1921 he began negotiations for the sale of the land in bulk, and on April 26 entered into a contract for its sale to one Kincaid, in which the land was described, not as acreage, but as blocks and lots in the Ewing addition, and incorporated in the contract and subsequent deed the building restrictions embraced in the conveyance to him, as he had done in the sale of the several smaller tracts he had sold off. He then moved with his family to South Dakota, where they had other interests. Riley and his family, at no time actually lived upon the land in controversy, or upon any property owned by him. He and his family, on the contrary, dwelt in houses rented from others, a part of the time several blocks distant from, and the balance of the time on a block adjoining, his own propei’ty. There were, in fact, no improvements upon his own land in controversy here.

Now, when Riley purchased the first batch of lots from Ewing, he paid only part of the consideration in cash, giving vendor’s lien notes for the balance. But, when he purchased the other batch of lots, he paid all cash therefor, and these lots comprise the property here involved. Riley defaulted in the payment of the notes due upon the first purchase, and Ewing sued upon these notes and for foreclosure of the vendor’s lien, and in the same action procured a writ of attachment upon the second batch of lots. In the trial, judgment was rendered for the debt, and for foreclosure of the vendor’s lien, but denying foreclosure of the attachment lien, upon the ground that the property attached constituted Riley’s rural homestead. From this judgment Ewing, the lienholder, brings this appeal.

The first question presented is whether the land in controversy was rural or urban, whether it constituted Riley’s urban hoipe-stead, or rural homestead. In our view of the case, it is unnecessary here to decide this question, and we do not expressly do so, unless, indeed, such' decision is made when we declare the rule to be that, where the home of the person claiming the exemption is located within or adjacent to an unincorporated town or village, the question of whether it is a rural or urban homestead is one of fact, to be determined from the location of the premises with reference to the settled portions of the town, the nature and character of the property, the uses to which it is put, and like considerations (Iken v. Olenick, 42 Tex. 195; Nance v. Johnson, 84 Tex. 401, 19 S. W. 559); whereas, if the home, when acquired, is adjacent to or within the defined limits of an incorporated town or city, the character of the homestead is determined by the location of the corporate limits. If the home is without such limits, it constitutes a rural homestead; if within, it is an urban homestead. If the land claimed as a homestead lies partly within and partly without the city limits, then the location of the dwelling or “mansion house” determines the character of the homestead, and that portion of the land lying upon the opposite side of the line from the home site constitutes no part of the homestead, and is not exempt, since no homestead may be invested with the dual character. Iken v. Olenick, supra; First Nat. Bank v. Jones, 244 S. W. 1057, decided by this court on November 1, 1922.

We are of the opinion, however, that under the facts as we have stated them, as disclosed in the tecord, the land in controversy was not shown to be the homestead of the Rileys. As stated, they at no time actually resided upon the land, or upon any land owned by them. They had their actual domicile upon other premises, which they leased for that purpose from others. They not only did not erect any house or dwelling place or any sort of improvements upon the land, but never made any preparations to that end; and, so far as the record shows, they never had any intention of improving the premises for the purpose of making their home thereon, or for any other purpose, and never intended doing so at any time in the future. On the contrary, Riley testified that he intended ultimately to sell out the property “in smaller tracts,” and his whole course of conduct indicated that this was his sole purpose in purchasing the property from Ewing.

Of course, the question of whether or Rot a given premises constitutes a homestead is primarily one of fact, to be determined from the circumstances of the individual case. But the courts have laid down certain fundamental rules for the determination of the fact, which may be readily stated. In the first place, the foundation of the rural homestead is the dwelling or “mansion” house in which the family finds shelter not only as a protection against the ravages of the elements, but as a haven of refuge and rest and peace from misfortunes as well. The 200 acres of land, the fields, the woods, the crops, the other improvements thereon, constitute a part of the homestead only because they are incident to the mansion house, and yield sustenance, and comfort, and pleasure, to the family dwelling therein.

It is not .essential that at the time of the purchase of land intended as a homestead there must be a home residence thereon. But, if the residence is not at the time on the land, those seeking to claim the exemption must have a present intention to build thereon within a reasonable time, and must take such steps, and make such preparations, in such manner, within such time, and to such an extent “as to manifest beyond doubt the intention to complete the improvements and reside upon the place as a home.” Franklin v. Coffee, 18 Tex. 413, 70 Am. Dec. 292; Iken v. Olenick, 42 Tex. 195; Railway v. Winter, 44 Tex. 597; Brooks v. Chatham, 57 Tex. 31; Johnson v. Burton, 39 Tex. Civ. App. 249, 87 S. W. 181; Dinwiddie v. Tims, 52 Tex. Civ. App. 72, 114 S. W. 400. In speaking of the rural homestead, Chief Justice Hemphill, in the case first cited, said:

“ * * * There must be a homestead over which the Constitution may throw its shield, and not land merely, upon which the owner may or may not put his cabin, mansion, or improvements, and claim as a home. A homestead necessarily includes the idea of a house for residence or mansion house. On town or city lots it cannot exceed a certqin value. But on the rural homestead there is no such restriction. The dwelling may be a splendid mansion, or a mere 'cabin or tent, open to the winds and rains of heaven. If there be either, it is under the protection of the law; but there must be a home residence before the 200 adjoining acres can be claimed as a homestead. * * * Nor would it be necessary to secure the exemption, that a house should be built or improvements made. But there must be a preparation to improve, and this must be of such a character and to such an extent as to manifest beyond doubt the intention to complete the improvements and reside upon the place as a home.”

The showing made by appellee in this case by no means meets the tests prescribed by Judge Hemphill in the foregoing, for, in addition to the concession that the premises on which Riley claimed an exemption had no dwelling house or other improvements upon it, and that the family dwelt on a different tract of land belonging to another, it was conclusively shown that Riley had made no preparations to build on the property, and in no manner evinced any intention of ever building or residing thereon. The proof was equally positive that he had no such intention at any time, and he in terms admitted on the stand that it was his ultimate intention to sell off the property in blocks and lots, as platted.

The judgment will be reversed, and, if this were the only question in the case, we would render judgment here for appellant. But the rights of Kincaid, who purchased from Riley, were not ascertained or expressly adjudicated below, and for that purpose the cause will be remanded.

Reversed and remanded.