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W. E. Luhn v. A. B. Stone

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11 cases

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1. Homestead—Contiguous lands—What will constitute an undivided interest in land A part of the HOMESTEAD—Fact CASE—A. S., a man of family, owned, in Austin county, a country homestead consisting of eighty-five acres of land contiguous to a certain other tract of seven hundred and one and one-half acres in the same county. Of the latter tract, the father of A. S. owned two hundred acres and W. S., a brother of A. S., the balance. There had never been a formal partition or designation between W. S. and the father, of their respective interests, yet the latter occupied as his homestead that portion of the tract lying nearest to the homestead tract of A. S. In 1877, W. S. died, leaving a will, in which A. S. was named independent executor, and one of the devisees. The will directed the executor, after paying the testator’s debts, to keep the residue of the estate under his control and management during the life-time ef their father, and out of the rents and revenue to furnish him (the father) support and maintenance, and after the the father’s death to partition the testator’s interest in the land amongst himself and the other devisees, his interest therein to bo one hundred acres. On his brother’s death, A. S. took possession of the land and managed it until his father died, September 5, 1881, and for some little time thereafter, renting portions of it, and cultivating a portion of it, himself. He also cultivated portions of it in 1881 and 1882, and, after partition amongst the devisees in 1888, he enclosed the part allotted to him and has ever since claimed and used it as part of his homestead. A. S., by the death of his father, also acquired thirty acres out of the latter’s homestead of two hundred acres. He had been induced, by a promise of his brother that he would devise him an interest in his land, to locate and erect homestead improvements on his original tract contiguous to that of his father and brother, and had, from the first, determined to make the interest which he was to acquire from his brother a part of his homestead. In May, 1880, L. recovered judgment against A. S., in the county court, for $402.46, and, September 8, 1881, execution was levied upon the land which had been devised the latter by his brother, reduced, by reason of debts against the estate, to eighty-seven and one-fifth acres. Subsequently,' the land was sold by the sheriff to satisfy that judgment, when L. became the purchaser. A. S. informed L. before the sale, that he claimed the land as a part of his homestead. Held • (1) That the contiguity of the tract upon which A. S. lived to the tract in which he had an undivided interest, in connection with the facts manifesting his intention to make his interest in the latter tract a part of his homestead, was sufficient to clothe the land in controversy with the character of homestead, at the time L. caused execution to be levied upon it. Such would be the result, although the use might not have extended to the particular part of the undivided tract, which was subsequently set apart to A. S., in the partition: (Citing Clements w. Lacy, 51 Tex. 150; Jenkins v. Volz, 64 Tex. 639; Brown v. McLennan, 60 Tex. 43.) (2) That the fact that, in the partition, A. S. received out of the tract of land in which he took an interest through the will of his brother, a tract separated from that on which he lived, did not affect his right. (Const., art. 16, see. 51.)