WESTERN MORTG. & INV. CO. v. BURFORD et al., 71 F. 74

PARDEE, Circuit Judge (after stating the facts).

The constitution of the state of Texas (article 16, § 51) provides: “The ‘homestead’ of a family, not in a town or city, shall consist of not more than two hundred acres of land, which may be in one or more parcels, with the improvements thereon; the homestead in a city, town or village, consisting of a lot or lots, not to exceed in value five thousand dollars at the time of their designation as the homestead, without reference to the value of any improvements thereon; provided, that the same shall be used for the purposes of a home, or as a place to exercise the calling or business of the head of a family; provided, also, that any temporary renting of the homestead shall not change the character of the same when no other home.stead has been acquired.” Articles 2343 et sequitur of tie Revised Statutes of Texas are as follows: “When the homestead of a family, not being in a town or city, is a part of a larger tract or tracts of land than is exempted fropr forced sale as such homestead, it shall be lawful for the head of the family to designate and set apart the homestead, not exceeding two hundred acres, to which the family is entitled under the constitution and laws of this state.” “The party desiring so to designate and set apart the homestead shall file for record with the clerk of the county court of the' county in which the land ór a part thereof may be, an instrument of writing containing a description by metes or bounds, or other sufficient description to identify it, of the homestead so claimed by him, stating the name of the original grantee and the number of acres, and if more than one survey the number of acres in each.” “Where the owner of such a homestead, part of a larger tract, as is described in

article 2343, has failed to designate and set apart his homestead, as provided in (he three preceding articles, the excess of such tract or tracts of land over and above the homestead exemption may be partitioned and separated from such homestead and subjected to levy and sale under execution, if otherwise subject, as hereinafter directed.” “Tiie defendant may at; any time after his homestead has been designated and set apart in either of the modes pointed out in this chapter, change the boundaries of his said homestead by an instrument executed and recorded in the manner provided for in articles 2244 and 2245, but such change shall not impair the rights of xiarties acquired prior to such change.” We have been referred to no case in the higher courts of the state of Texas in which the plain, unambiguous language of the foregoing statutes has been explained, limited, or modified.

In Barnes v. White, 53 Tex. 630, however, the said statutes were indorsed as calculated to prevent fraud, injustice, and litigation. The undisputed evidence in this case is that Burford aud wife were the owners of parts of different surveys, forming one contiguous tract of farming and pasture land, and had thereon, at least, two dwellings (messuages and curtilages), one of which, on (lie.Inman survey, had been occupied as a homestead from 1879 until 1884, with temporary absences of the family in Ft.

Worth, and had never been formally abandoned as a homestead, although in later years Burford and his family, when not living in Ft. Worth, and after 1884, occupied the other dwelling, which was on the Edwards survey.

Under these circumstances, and under the plain provisions of the law, Burford had a right to designate and set apart, out of the tracts of land owned by himself and his wife, the homestead, not exceeding 200 acres, to which the family was entitled, under the constitution of the state; and when he did so designate and set apart the homestead openly and above hoard, with the consent of his wife, and without infringing on the rights of others, he had the full right to deal with the balance of the land as free and clear of all homestead rights, and other parties liad the right to deal with him in regard to such land as free and clear of the homestead right.

This being the case, when we find hv the undisputed evidence that, in accordance with the forms prescribed by law, Bur-ford designated the 304 acres of the Inman survey, upon which there was a dwelling house (messuage and curtilage), formerly occupied by him and Ids family asoa homestead, as the homestead of the family, and on the faith thereof made a deed of trust of the other surveys owned by him, to secure a loan from the Texas Loan Agency, and afterwards a loan from the complainant, we are hound to hold that Burford is now estopped by lawful covenant from claiming, as against the complainant, a homestead other than that so as aforesaid designated, to say nothing of an estoppel in equity by and through the recitals in the trust deed, and under the affidavit made by him, and set forth in the record.

We do not; find that any of the cases cited in the opinion of the learned judge in the court below militate against this conclusion. We will refer to some of them briefly: In Philleo v. Smalley, 23 Tex. 503, Mr. Justice Bell says: “A man’s homestead must lie his place of residence; the place where he lives; the x>lace where he usually sleeps and eats.” So far as this quotation is concerned, we can only say that, if it is applied to this case, we should he constrained to find, as a general proposition, that Burford’s homestead is in the city of Ft.

Worth, for .there is the place where he has lived more than on his alleged homestead, and is.the place where, by his evidence, he now lives. In Railway Co. v.

Winter, 44 Tex. 597, Justice Roberts says: “The object of the constitution was to protect the house and farm, tan yard, mill, gin, and whatever had been used in connection with the residence and to make a support for the family.” Conceding the correctness of this proposition, we are still compelled to decide which one of Burford’s dwelling houses was his homestead, —the one he chose and selected when he wanted to borrow the money from the complainant, or the one he now puts forward as his homestead, when he wants to defeat the complainant in the collection of his loan.

In addition to the above quotations, we note that Justice Eoberts m the same opinion also says: “Tbe question of intention does become important in some points of view, as, for instance, in determining whether or not a person has acquired a homestead at all, as in case of domicile, or whether he has abandoned his homestead, or which one of two houses, where he sometimes resides in each, is his homestead, or which of the two fields that are in use in connection with his rural occupation or calling is to be preferred when both cannot be, and the like.

But when a person is the occupant of a large tract of land, with a mansion house surrounded by or contiguous to his farm, which he uses in his calling as a means of support, most of the tract being woodiand or prairie, or consisting of a number of tracts, some of which are not uséd at all, such facts determine substantially and approximately the locality of his homestead, and the locality of portions of the large tract not so used to be not his homestead or part of it, irrespective of his intention at the time.

If he should wish to change the locality of his homestead on such large tract by moving his residence to another portion of his’tract, or by changing the boundaries substantially different from the locality which the pre-existing facts of ostensible use and enjoyment have fixed for him, he must do it before other persons have acquired a right by valid lien or purchase on such portion of the land as had not been a iiart of the homestead, and in such manner, by such use or actual designation, as not to permit others to be deceived or entrapped by the obvious appearance of his ostensible situation on his land.

His specific intent in making the change, either to defraud others who have rights attached to the land^or to grab from them the most valuable land not previously used for homestead purposes, for his own pecuniary advancement, and that alone, is therefore not the true test in determining the validity of the claim of homestead.” Freeman v. Hamblin, 1 Tex. Civ. App. 163, 21 S.

W. 1019, is quoted from as follows: “Where there are more than 200 acres of land in a rural homestead, the husband may designate the homestead, but he cannot defraud the wife in so doing as to the actual homestead.” This quotation is not applicable to this case, because there is no contention here that the wife was deceived or defrauded by the husband’s designation-of the homestead; but the case rather shows, and the contention of the appellant is, that the wife of Burford was fully advised in the premises, and consented to the designation as made, going so far as to join in the temporary abandonment of the Edwards survey as a homestead, in order to deceive the Texas Loan Agency in the very matter of the homestead.

We have examined Loan Agency v. Blalock, 76 Tex. 85, 13 S. W. 12 Mortgage Co. v. Norton, 71 Tex. 689, 10 S. W. 301, and Haswell v. Forbes (Tex. Civ. App.) 27 S. W. 568, which, so far as applicable here, are cases dealing with designations of homesteads by actual, open, and exclusive possession, and And nothing in any of them to conflict with, bur much to support, what we understand to be the correct rule in this case.

The decree of tlie circuit court is reversed, and the cause is remanded, with instructions to enter a decree for the complainant recognizing and enforcing its lien oil all the property described in the deed of trust set forth in the bill, and as prayed for.