(256 F.)

DUNN v. ECKHARDT.

In re C. ECKHARDT & SONS et al.

(Circuit Court of Appeals, Fifth Circuit. February 27, 1919.)

No. 3080.

1. COURTS 366(19) · FOLLOWING STATE DECISIONS

HOMESTEAD.

Whether bankrupt prior to bankruptcy abandoned any part of his Texas homestead is to be determined solely by the law as decided by Texas courts.

2. HOMESTEAD 181(1)-ABANDONMENT-BURDEN OF PROOF.

Under Texas decisions, the burden of showing abandonment of a homestead once existing rests on those contesting its continuance.

3. HOMESTEAD 162 (1)—ABANDONMENT-REMOVAL-INTENT.

Under Texas decisions, removal from homestead, to constitute abandonment of it, must be shown to have been coupled with an intention never to return.

4. HOMESTEAD 165-ABANDONMENT-USE FOR OTHER PURPOSES.

Under Texas decisions, for use of homestead for other than homestead purposes to constitute abandonment, the use must clearly show an intention no longer to use it for purposes of a homestead.

5. HOMESTEAD 165-ABANDONMENT-NATURE of Use.

Under Texas decisions, where one erected on part of his homestead lot a building, and, from its completion, used at least part of the second story as a bedroom for members of the family or guests, there was no abandonment of such portion as part of the residence homestead.

6. HOMESTEAD 165-ABANDONMENT-ERECTION OF BUILDING FOR OTHER PURPOSES.

Under Texas decisions, erection of a building on part of the homestead lot, with intention of using it for a purpose other than a homestead, does not divest such part of the lot of its homestead character; but there must be an actual inconsistent use.

7. HOMESTEAD 168-ABANDONMENT TEMPORARY RENTING.

By express provision of Const. Tex. art. 16, § 51, no temporary renting of the homestead constitutes an abandonment.

8. HOMESTEAD 165-ABANDONMENT-USE OF PART OF BUILDING FOR INCONSISTENT PURPOSE.

Under Texas decisions, use of part of a building on the homestead lot for purposes inconsistent with the homestead, the balance being used for homestead purposes, does not divest it of the homestead character; it being an inseparable part of the building.

Petition to Superintend and Revise from the District Court of the United States for the Southern District of Texas; Waller T. Burns, Judge.

In the matter of C. Eckhardt & Sons and William Eckhardt, bankrupts. Petition by W. H. Dunn, trustee of bankrupts, to superintend and revise a decree sustaining homestead exemption of William Eckhardt. Affirmed.

H. W. Wallace, of Cuero, Tex. (C. F. Carsner, of Victoria, Tex., and R. J. Waldeck, of Cuero, Tex., on the brief), for petitioner.

John H. Bailey, of Cuero, Tex. (A. B. Davidson, N. M. Crain, and A. C. Hartman, all of Cuero, Tex., and J. T. Linebaugh, of Victoria, Tex., on the brief), for respondent.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

Before WALKER and BATTS, Circuit Judges, and GRUBB, District Judge.

BATTS, Circuit Judge. William Eckhardt, adjudged a bankrupt, claimed as exempt the property in controversy as part of his homestead. The trustee scheduled the property as part of the estate to be administered. An order of the referee, substantially confirming the action of the trustee, was reviewed by the District Judge. The bankrupt's exemptions were sustained, and the property decreed to be the business homestead of the bankrupt. The trustee has filed with this court a petition for review.

In 1866, William Eckhardt and family established their residence and business homestead on the west half of block 58 of the town of Yorktown, Tex. A storehouse was erected on the northwest corner, and the balance of the half block was used in connection with the residence. In the store building a grocery business was started, which was extended to other lines of merchandise and cotton buying, and in 1868 a private bank was added to the business. Adjoining the store building on the east a warehouse was erected, which was thereafter continuously used in connection with the business. About 1902 a two-story brick building, called the "bank building," was constructed; the foundation of the east wall of the warehouse being used as a part of its west wall.

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[1] It is admitted that all of block 58 was exempt as homestead prior to the construction of the bank building. The question for determination is whether any part of this homestead had been abandoned prior to the bankruptcy. The question is to be determined solely by a consideration of the Texas decisions. No general principles jurisprudence are applicable. The efforts of this court will be directed to an ascertainment of the law as developed by the courts of Texas. [2-4] The rules for the determination of abandonment of a homestead are announced in a long and consistent line of decisions. The radical character of these rules is indicated by the following excerpts: Robinson v. McGuire (Tex. Civ. App.) 203 S. W. 416:

"When it is shown that the homestead once existed, the burden of proof rests upon those who contest its continuance to show that it had been abandoned, and that, in order to constitute an abandonment, it is not sufficient to show a mere discontinuance of the use of the property as a residence, but it must also be shown that such discontinuance was accompanied by an intention never to resume its use as a homestead."

Armstrong v. Nevill (Tex. Civ. App.) 117 S. W. 1012:

"To constitute an 'abandonment' of the homestead, it must affirmatively appear that there was not only a removal from the home, but a removal coupled with an intention never to return."

In Rollins v. O'Farrell, 77 Tex. 91, 13 S. W. 1021, the court held not erroneous the following language of the charge:

"And if from all the testimony it clearly appears that the same was permanently abandoned," etc.

The court quoted from Newton v. Calhoun, 68x. 451, 4 S. W645:

(256 F.)

"Before either of them will cease to be a part of it

it must be

applied to uses inconsistent with the uses for which the homestead is protected-to uses which clearly show an intention no longer to use it for purposes of a home."

This language is quoted approvingly by Justice Gaines in Langston v. Maxey, 74 Tex. 161, 12 S. W. 27. Chief Justice Hemphill used stronger language in Gouhenant v. Cockrell, 20 Tex. 98:

"Admitting, however,

that where there is an abandonment with

a fixed intention not to return, the property may be open to creditors; yet it must be undeniably clear and beyond almost the shadow at least of all reasonable ground of dispute that there has been a total abandonment, with an intention not to return and claim the exemption."

Sykes v. Speer (Tex. Civ. App.) 112 S. W. 426:

"Abandonment is accomplished, not merely by going away without any intention of returning at any particular time in the future, but by going away with the definite intention never to return."

See, also, Drought v. Stallworth, 45 Tex. Civ. App. 159, 100 S. W. 189; Bogart v. Bank (Tex. Civ. App.) 182 S. W. 681; Woeltz v. Woeltz (Tex. Civ. App.) 57 S. W. 906.

[5, 6] Was the Property Abandoned as a Residence Homestead?-The following facts appear from the uncontradicted evidence:

At the time the construction of the bank building was determined upon, all of the west half of block 58 was in use as a residence and business homestead of the bankrupt and his family. Upon the half block were the residence, barns, a garden, the storehouse on the northwest corner and warehouses adjoining, all within the same inclosure, and a few steps only between them. The family consisted of the bankrupt, his wife, a daughter, and several sons. The latter had slept in a small house which the grandmother occupied. As they grew up, the available space became inadequate, and it was determined to construct a new building, a part of which should be used by them. The new building was constructed adjoining the old warehouse, on land that had been used by the children as a playground. It was only at few yards from the residence, and the steps into the upper story were on the outside in the home yard. When the building was completed, all of the upper story was furnished as a bedroom. The mother and daughter of the family testified that they considered it as a part of their home, and that it was kept in order as the balance of their residence; the rooms being given daily attention, just as the other rooms of the home, either by the mother or daughter, or by the hired help. The room was occupied by the boys until they became grown and were married, and one of them used it for a short time after his marriage. During this period they were regarded members of the family, and had their meals in the old residence. When the boys left, the room was maintained as before, being kept in order at all times. It was used by the boys when they visited the family, and by other guests, and sometimes by the mother and daughter when they desired to be by themselves, or when there was a family consultation.

Some years after the construction of the building, the upper story was partitioned, and the front part rented from month to month to

to

a dentist. The rear, used as before, containing bedsteads, wardrobes,
tables, chairs, and other furniture which had been and continued
be used by the family. The building was considered as a part of the
home. The ladies of the family covered its walls with ivy, and vines,
flowers, and other shrubbery were placed along the rear and side.
The rear room has never been used for any purpose other than those
indicated, except that some sewing machines and shoes belonging to
the business were stored there for a short time.

There can be no question that, after the construction of the "bank building," the second story was, for a while, used as a part of the residence homestead. Even if it be determined that the balance of the building was used for purposes inconsistent with the residence homestead, this part of the building was, as soon as the builling was completed, for a time used for purposes of the residence homestead, and the rear part of the second story was never at any time otherwise used. The lot upon which this building was constructed had been a part of the residence homestead. In order to divest it of its residence homestead character, there must have been a use definitely in conflict with the use of the property as a residence homestead, and a definite intention not to again use it for residence homestead purposes.

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Whatever may be said with regard to the balance of the building, it is, of course, clear that the part which, after construction, was once used for residence homestead purposes, could not be said to used for a purpose in conflict with such use. The construction of building, with the intention of using it for a purpose other than a homestead, does not divest the lot upon which it is placed of a homestead character that has been fixed. There must be an actual inconsistent use. Woeltz v. Woeltz (Tex. Civ. App.) 57 S. W. 906. Even if it were possible to abandon by mere intention, in the absence of inconsistent use, the upper story could not be held abandoned, for the testimony of the wife and daughter of the bankrupt clearly indicates that this story was constructed for homestead uses. Their statement of intention is admissible as evidence thereof (Thigpen Russell, 55 Tex. Civ. App. 211, 118 S. W. 1081), and their testimony is confirmed by subsequent use. As soon as the building was completed, this story was used for purposes, not only not inconsistent with the homestead use, but definitely a use to which a residence homestead would be placed.

V.

The suggestion has never been made that the use of a room that was part of the residence homestead for the temporary accommodation of guests, or its use for a time by the recently married members of the family, affected in any way its residence homestead character. These are proper uses of a home.

The liberality of the law with reference to what constitutes a homestead is indicated by Anderson v. Sessions, 93 Tex. 279, 51 S. W. 874, 55 S. W. 1133, 77 Am. St. Rep. 873, in which the authorities are

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viewed, and it is held that the use of detached lots for a garden would make them a part of the residence homestead. The court quotes from Arto v. Maydole, 54 Tex. 247:

(256 F.)

"The question is not whether any portion of this adjoining block may have been a necessity or a mere convenience to the enjoyment of the homestead, but whether, in fact, it was a part of the homestead. If it was, the fact that it may have been used as an approach to the mansion, or for purposes of ornamentation of pleasure grounds only, would not defeat it of the homestead protection"

-and says:

"If playgrounds and shady parks, with graveled walks used only for pleasure or ornamentation, are protected, because used for the purposes of a home, we think that a little garden spot, although in a distant suburb of the town, would not be an improper or an unreasonable addition to the homestead, where it is used for the purpose of supplying the home table with the necessaries and comforts of life."

Even if some of the uses to which this part of the homestead had been put were not homestead uses, such uses would not constitute abandonment of the part so used, in the absence of an intention not to use them again for homestead purposes.

The status of the law is definitely determined by a large number of cases, a few of which are reviewed.

Whitley v. Alexander (Tex. Civ. App.) 198 S. W. 173:

A small house, which had been used as the family residence, was removed to a part of the lot segregated by a fence, and rented whenever any one could be found to rent it. The test was:

"Was there such a segregation of this portion of the homestead, coupled with the intention to abandon it as a part thereof, as to constitute abandonment?

Held not abandoned.

Drought v. Stallworth, 45 Tex. Civ. App. 159, 100 S. W. 189:

Two houses were erected on a lot of the block upon which the homestead had been located. The owner testified that he built the houses to rent, but that he had never surrendered their full control to any one, and that he had never abandoned the idea of using any part of this lot upon which the rent houses were situated as a home, and that he refused to sell the lot, because the sale and separation from his other lot would ruin his place as a home. During a portion. of the time the houses were occupied by families who did the family washing and other services, presumably in payment for their use. The court sustained the claim of homestead.

Rollins v. O'Farrel, 77 Tex. 91, 13 S. W. 1021:

O'Farrel owned as a homestead 100 feet on a street, running back 315 feet to another. The residence was on the east end of the lot; and, at the time of the dedication as a homestead, there were on the west end a barn, bathhouse, and a cistern house, all inclosed in one fence, and used in connection with the residence. Shortly after, he converted the barn into a residence and moved it so as to front on the street. He also moved the bathhouse and cistern house, attaching two rooms to them, so that they could be used as a dwelling. fence inclosed all of the property; a high board fence separating the tenant houses from the residence proper. The houses were rented when tenants could be found. There was evidence that the barn and other houses changed into dwellings was with the intention to make them

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