Opinion
No. 3802.
January 23, 1930.
Appeal from District Court, Bowie County; Geo. W. Johnson, Judge.
Action by T. D. Buttram and another against W. L. Browning's unknown heirs, J. S. Calfee, and others. From a judgment for plaintiffs, defendant Calfee appeals. Re versed and remanded.
This suit by appellees T. D. Buttram and Jack Buttram as plaintiffs was to remove clouds cast, they alleged, on their title to lots 1, 2, 3, and 4, in block 3, in the town of DeKalb, by a claim of appellant, J. S. Calfee, made a defendant, and claims of a number of other persons, made defendants, who need not be named here because no complaint is made of the judgment appellees obtained against them. It appeared that the lots belonged to W. D. Sanders, and were occupied and used by him and his wife as their homestead November 24, 1925, when Calfee had an abstract of a judgment for $7,078.66 he had obtained against Sanders duly recorded in Bravie county, where the lots were situated, and on June 23, 1926, when Calfee had another abstract of said judgment recorded in said county. The family dwelling house on the lots was destroyed by fire July 3, 1927, and Sanders and his family never thereafter lived on the land. The lots were conveyed by Sanders and his wife to appellees June 22, 1928, when, and ever afterward, more than $6,900 of said judgment remained unsatisfied. At the trial it conclusively appeared that appellees were entitled to the relief they obtained against Calfee if the lots constituted Sanders' homestead at the time he and his wife conveyed same to them (appellees), and, on the other hand, as conclusively appeared, appellees were not entitled to such relief, but took the title Sanders conveyed to them charged with the lien of Calfee's judgment if the lots were not then Sanders' homestead. The controverted issue (and only one) in the case as between appellees and Calfee was as to whether Sanders had abandoned the lots as his homestead before he and his wife conveyed same to appellees. We think there was evidence relevant to said issue sufficient to support the finding of the jury that Sanders had not so abandoned the lots, and that there was evidence sufficient to support a contrary finding. In this state of the case the court submitted to the jury the special issue and explanations thereof set out below:
"1. Do you find from the evidence that W. D. Sanders had `abandoned as a homestead' the property described in plaintiffs' petition prior to the negotiation of the sale of the same by himself and wife to T. D. Buttram and Jack Buttram? To aid you in answering the foregoing question you are instructed that the words `abandoned as a homestead' means to voluntarily cease to occupy or use the same as a homestead with the intention of never returning to and occupying or using the same as a home for the family. And that the burden is on the defendants in this case to establish the affirmative of the foregoing issue by a preponderance of the evidence. By a preponderance of the evidence is meant the greater weight or degree of credible testimony." Answer "No."
"7. If you have answered question No. 1 `Yes', then state whether or not W. D. Sanders and wife ever voluntarily abandoned said premises as their homestead prior to their sale of same to Jack and T. D. Buttram? I charge you, in connection with your answer to this question that to constitute a voluntary abandonment the abandonment must be as a free and voluntary act of the party and must not be made or caused by any fear of bodily harm or punishment, and unaccompanied by fear or procured by threats of any person, and there must be an intention on the part of the person so abandoning to abandon all homestead uses thereof with a fixed intention not again to use same as a homestead at some future time." (Not answered.)
"9. If you have answered question No. 1 `Yes', then state whether or not W. D. Sanders and wife ever abandoned said premises as their homestead prior to their sale of same to Jack and T. D. Buttram. I charge you, in connection with this question, that to constitute an abandonment of a homestead it is not sufficient merely to show an abandonment of a residence thereon, but an abandonment of said property for all homestead purposes must be shown, and with a fixed intention not again to use said property as a homestead at some future time." (Not answered.)
"10. Do you find from the evidence that after said residence of W. D. Sanders and wife was destroyed by fire, and before their sale of the lots in controversy to T. D. and Jack Buttram, the said W. D. Sanders had decided never to return and occupy said homestead? I charge you, in connection with your answer to this question, that where property has once been acquired, occupied and claimed as a homestead, and no other homestead has been acquired, before you would be authorized to find an abandonment of the old homestead with an intention to never return and again claim the same as a homestead, it must appear to you from the evidence to be undeniably clear and beyond all reasonable ground of dispute that there has been a total abandonment, without an intention to return and claim the exemption." Answer: "No."
On the answers of the jury to said issues 1 and 10 and answers by them to other issues regarded as immaterial and not set out, the court rendered judgment in appellees' favor against the parties defendant, including appellant Calfee, who alone prosecuted the appeal.
Keeney Dalby, of Texarkana, for appellant.
Pirkey Atchley, of New Boston, for appellees.
No objection was made in the court below to the action of that court in submitting to the jury the special issue numbered 1 and the instructions accompanying same, set out in the statement above, and no complaint predicated on that issue and those instructions is made here. A reversal of the judgment appealed from is urged mainly on the ground that the trial court committed error prejudicial to rights of appellant when at appellees' request he submitted to the jury the special issues numbered 7, 9, and 10, and instructions with reference thereto, set out in said statement. In the court below, appellant objected to the submission of those issues and instructions to the jury on the ground that they were in effect general charges, contained incorrect statements of the law applicable to the case, were on the weight of the evidence, and were in conflict with instructions accompanying said issue numbered 1.
We think appellant's contention that the action of the court, in overruling his objections to the issues and instructions, and submitting same to the jury, was error entitling him to a reversal of the judgment, must be sustained. We are inclined to think said issues and instructions were objectionable on all the grounds urged to them as stated; but certainly, if they were repetitions of the issue numbered 1 and instructions accompanying it, they were within the rule denouncing as erroneous the action of a court in repeating instructions he gives a jury (Owens v. Imp. Dist., 115 Tex. 263, 280 S.W. 532; Ry. Co. v. Andrews [Tex. Civ. App.] 291 S.W. 590), and, if they were not repetitions, they must have been confusing to the jury, and therefore calculated to prejudice rights of appellant. If the instruction accompanying the issue numbered 10, that it must appear to the jury from the evidence "to be undeniably clear and beyond all reasonable ground of dispute" that the homestead had been abandoned before they would be authorized to answer said issue numbered 10 in the affirmative, was a correct statement of the law, we think it was error, nevertheless, to give it, because, if for no other reason, it was contradictory of the instruction accompanying said issue numbered 1, which authorized the jury to find the homestead had been abandoned, if the fact had been established by a preponderance of the evidence.
It conclusively appeared from the evidence before the court that the lots constituted the homestead of W. D. Sanders and his wife at the time the family residence thereon was destroyed by fire, and further conclusively appeared that said Sanders and his wife left the lots when the fire occurred, and never thereafter returned to and used same as a homestead. The controverted question, and only one, in the case was as to whether Sanders, after the fire, and before he and his wife conveyed the lots to appellees, formed an intent to permanently abandon use of the property as a homestead. On another trial of the case, if the evidence is the same, we suggest that such an issue and no other be submitted to the jury.
We think the trial court erred when he overruled appellant's objection to specified testimony of the witnesses Wyback, Johnson, Sellers, and Mitchell, and admitted same as evidence; but we do not think he erred when he overruled the objection made to specified testimony of Mrs. Leslye Lewis Sanders and admitted same as evidence.
The judgment will be reversed, and the cause will be remanded to the court below for a new trial.