
    A. & C. Medlenka v. R. Downing et al.
    (Case No. 1331.)
    1. Presumption — Community property.— Land was purchased in 1853, by one whose wife died soon after the purchase; in 1854 he married again. Held,
    
    (1) That the payment of a portion of the purchase money soon after the second marriage would raise no presumption that the money used was the community fund of the husband and of his second wife.
    (2) The payment of the remainder of the purchase money from the rents of the property created no community interest in the wife of the second' marriage, it not appearing that the rents accrued after the second marriage.
    2. Homestead.— The fact that a portion of the ground claimed as an urban homestead is used for purposes of mere convenience or pleasure, and is intended to beautify or ornament the surroundings of the actual home residence, will not divest it of its homestead character.
    3. Same.— One may as absolutely and clearly abandon a portion of the ground which once constituted the homestead, if the same be done in good faith, by acts certainly evidencing such a purpose, as he may abandon the entire homestead by-ceasing to use it, and never again intending to occupy it as such. This partial abandonment of homestead property occurs when, on a portion of an urban homestead, costly buildings are erected, solely to be rented to others for mercantile or other purposes, and which, when erected, are so rented. To continue the constitutional protection to that portion of the former homestead thus abandoned, and dedicated to other uses, would be a perversion of the spirit of that instrument.
    4. Same.— But if a lien to secure debt be given on property, which at the time of its execution is in fact a part of the homestead, the same is invalid, and this though at the time there was an intention, evidenced by writing, to restrict in future the homestead, so that it should not embrace that portion of the existing homestead covered by the lien.
    5. Same.— While persons may abandon a portion of the ground once constituting the homestead, and appropriate it to uses wkiph will deprive it of its homestead character, yet if this is attempted by the husband in fraud of the rights of the wife, or in any manner with intent to evade the provision of the constitution which prohibits the giving of liens on the homestead (the property being really still a part of the homestead), it would continue impressed with the homestead character, and the lien would be void.
    Ebeob from Harris. Tried below before the Hon. James Masterson.
    
      Suit by appellees against the appellants for part of block Ho. 109, on the south side of Buffalo bayou, in the city of Houston, measuring one hundred feet on Jackson street and two hundred and fifty feet on Magnolia street, excepting a piece fifty by one hundred feet out of the same. The right to recover was alleged to be, “ That on the 30th day of August, 1876, Anton Medlenka and his wife, Christina Medlenka, the appellants, executed their note for $1,500, due three years after date, with twelve per cent, interest, and that to secure it they executed a deed of trust on the land described in the petition to W. W. Downing, trustee, and, in case he failed to act, then to H. A. Maydole, as alternate trustee; that when the note fell due appellants failed to pay it, and the land and premises were regularly sold, and appellees became the purchasers.”
    Appellants answered that the premises were, at the date of the execution of the deed of trust, their homestead, and had been their homestead for a period of twenty-six years, viz., since 1854, and they claimed the deed of trust conveyed no right, and that plaintiff had no title to the land sued for.
    The only defense urged in the court below was that at the time the deed of trust was executed, the land sued for was the homestead of appellants, and the deed of trust and the sale under it were void.
    The description given in the deed of trust for the land is as follows: “All that tract or parcel of land to which the said A. Medlenka was, at the spring term of the district court of Harris county, 1868, vested with a fee simple title by a decree of said court, in block one hundred and nine (109),-on the south, side of Buffalo bayou, in the city of Houston, which tract or parcel of land is described by said decree as being one hundred feet on Jackson street and two hundred and fifty-nine feet on Magnolia street, containing two hundred and twenty-four thousand five hundred square feet. We only excepting out of the said tract which we now designate here as our homestead, to wit: fifty by one hundred feet, commencing at the southwest corner of said block 109; thence along the line of Jackson street one hundred feet, to the back line of said tract; thence east along the north or back line of said tract fifty feet; thence south, parallel with Jackson street, one hundred feet, to Magnolia street; thence west along Magnolia street fifty feet, to the place of beginning. This described fifty by one hundred feet being the only amount of said tract which we claim as our homestead.”
    The court, among other things, found upon the facts “ that plaintiff loaned Medlenka and wife $1,500, secured by trust deed upon all of the block except fifty by one hundred feet, upon which stood all the houses, outhouses and conveniences pertaining to the homestead of Hedlenka and wife; that the money so borrowed was invested in erecting tenement houses for rent, which have ever since been rented and in no sense used for homestead purposes, and that the present homestead of Hedlenka and wife is amply sufficient.”
    The court further found on the facts:
    . . . “ Upon the trial it sufficiently appeared from the evidence, that at some period anterior to borrowing the money by defendants, that the block 109 was inclosed, and that a part of it outside of the fence which separated the yard from the balance of the block, was used as a garden for vegetables for family use and for market. The preponderance of proof on this point shows that the kitchen garden was on that part of the block fronting on Hagnolia street, between ■ the point indicated in the trust deed as being fifty feet from Jackson street, and the point indicated by a curved line, upon which the evidence shows the fence separating the tenant houses was put there for convenience, is marked on the plot as ‘ fence first.’ Hr. Máydole testified that Hedlenka told him no part of -said block, except that reserved in the trust deed, was his homestead, and that he, before he loaned the money for Mrs. Downing, examined the premises, and found that all of said block, except the yard of the house, was a waste and not in use. That the fence was dilapidated and down, and nothing about it indicated a present use of it; that if he had known that Hedlenka and his wife put any homestead claim to that part of the block outside of the fence separating the yard from the balance of the block, he would not have loaned the money upon it. That the representations as to the extent of the homestead were made in the trust deed, which was fully understood by Mrs. Hedlenka when she signed it, and that upon the faith of these representations, and upon his examination of the premises, the money was loaned, and would not have been loaned otherwise.”
    “ Mrs. Hedlenka testified that the kitchen garden was on that part of the block outside of the yard fence, which lies adjoining the yard and the fence of the first tenement house.”
    “ Hedlenka and his wife testified that the object and purpose of the division fence separating the yard from the garden was to keep the chickens out of the garden.”
    
      “ Liskow, Schieffer, and one or two others, testified that, for many years before the date of the trust deed, the whole block was inclosed and a part of it used for a garden, but that for some time before the tenement houses were put up, that part of the block outside of the yard was idle and waste, except a small kitchen garden, the location of which has already been shown, and that the fence was about the middle of the block, which was moved in. There was no evidence tending to show that any part of the block, from the fence separating the tenement house from the house occupied by Medlenka and his wife, had been used at any time since the borrowing of the money from plaintiff for any purpose of a home, except that part between fence first and the yard fence.”
    . . . “ That the part of said block between the yard and the fence separating the tenement houses, indicated as fence one, was, at the time of borrowing the money, in fact used as a vegetable garden, but that Medlenka represented to Maydole that it was no part of the homestead, and that they did not claim it as such, and that but for these representations, and the defining the limits of the homestead by the trust deed, the money would not have been loaned.”
    The court further proceeds: “ That all the houses, cisterns and outhouses connected or used by defendants are upon the lot fifty by one hundred feet, as described in the trust deed, and that the same is worth $1,260, and is reasonably sufficient for a homestead for defendants, and that they themselves so fixed their homestead before obtaining the money with which they built three tenement houses, which have since been rented out, and the rent used in support of the family.”
    . . . “That having thus limited and defined their homestead, and there being reserved a homestead for the family, upon which all the buildings and conveniences used in connection with their house was located, and this appearing to be a reasonable home place for defendant, and not an evasion of the constitutional provision on that subj: ct, that defendants are estopped, as against plaintiffs, to claim homestead rights in any part of the block outside that defined in the trust deed.”
    The situation of the premises will be understood from the following plot:
    
      
      
    
    JACKSON STREET.
    C. P. B. Medlenka, son of A. Medlenka by a second marriage, intervened, claiming one-half of the property as the community interest of his mother. It is unnecessary to detail the facts affecting his claim; they are sufficiently suggested by the opinion.
    In rendering judgment for plaintiff below, the district judge delivered a written opinion on the facts and law which is too lengthy for insertion in full. Extracts above given indicate sufficiently its character.
    
      
      W. P. Hamblen, for plaintiff in erroiv
    
      Hutcheson & Carrington, for plaintiff- in error C. P. B. Medlenka,
    cited McAlister v. Farley, 39 Tex., 552; Neil v. Keese, 5 Tex., 23; Rice v. Rice, 21 Tex., 58; 49 Tex., 46; 49 Tex., 257; Willis v. Gray, 48 Tex., 463; Blankenship v. Douglas, 26 Tex., 225; Mitchell v. Marr, 26 Tex., 329.
   Stayton, Associate Justice.—

The land in controversy was purchased by Anton Medlenka in 1853, during the life of his first wife, who died in that year. He married the mother of the intervenor, C. B. P. Medlenka, in 1854, and the fact that a portion of the purchase money for the land was paid during the life of the mother of the intervenor is not sufficient evidence that the money so paid was community property of Anton Medlenka and his second wife. The time of that payment is not shown, and it may have been paid soon after that marriage; if so, no presumption would arise that the money was not the separate property of Anton Medlenka.

In 1857' be went north and remained until 1860, during which time the property seems to have been in care of John Kuhlman, who held possession of it until 1868. The mother of the intervenor died in 1857, and the residue of the purchase money was paid by Kuhlman, and was settled with him through the rent of the property while in his possession. These facts do not show that any of the community estate of the mother of the intervenor was used to pay a part of the purchase money. Hence it is not shown that he has any interest in or charge upon the property, and the court did not err in so adjudging.

That all of the property covered by the trust deed may have been, from its situation and use, at one time a part of the homestead*, is most probably true; but at the time the deed of trust was given the evidence tends to show that the east end of the property was not used for homestead purposes; and the very purpose for which the money was borrowed was to erect upon that part of the property some tenement houses for rent.

The subsequent acts of Medlenka show that the purpose was real.

From the evidence the court found: “ That the loan of money was in good faith, and at the date of the loan the homestead of defendants was defined by themselves as described in trust deed, and that the object of so defining it was to entirely separate their homestead and to utilize the balance of the block; and furthermore, that this was done, not with the purpose of evading the constitutional provision touching incumbering the homestead, but was a hona ficle fixing of the limits of their homestead, and an abandonment of any homestead interest in any part of the block, save that defined in the trust deed; and that so fixing and defining the yard to be the limits of their homestead, all the balance of the block was not a part of their' homestead.”

“ That having thus limited and defined their homestead, and there being reserved a homestead for the family, upon which all the buildings and conveniences in connection with their home were located, and this appearing to be a reasonable home place for defendants, and not an evasion of the constitutional provision on the subject, that defendants are estopped, as against plaintiffs, to claim homestead rights in any part of the block outside of that defined in the trust deed.”

The record bears evidence of a careful and laborious examination of the facts and law of the case by the judge who tried it, and the evidence as to the most of the property justified his conclusions.

Before the money was loaned and trust deed executed, the fence which separated the ground upon which the houses stood from the rest of the block, ivas erected, and had been for many years, and the next partition fence to the east of that, which inclosed the land which was in use as a garden at the time the trust deed was executed, had also been erected. That fence separated the part of the block upon which the tenement houses were erected from the rest of the block. The land east of that, at the time the trust deed was executed, does not seem to have been used for any homestead purpose, and, so far as the evidence shows, the acts of the parties in designating the homestead, and in borrowing and lending the money, and in giving and securing the deed of trust, seem to have •been done in good faith.

The question which arises in the case is: Gan a husband and wife, one of them owning in a town or city a block of land upon which their homestead stands, all of the block not being actually used for homestead purposes, but inclosed in one common inclosure, so designate a part of that block, which is in actual use as a homestead, as to confine the homestead to the part of the block so used, and to exclude that part of the block which is not so used, and not intended to be so used in the future, from the homestead character?

The object and purpose of the homestead exemption has been so often stated that there is no need to repeat now; and the constitution, in no mistalcable terms, declares the uses to which it must be put in this language: “ 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.” Const., art. XVI, sec. 51.

Whatever property in a town or city is used for the designated purposes, tiie same, at the time of its designation not exceeding the value prescribed by law, constitutes the homestead; and no mortgage, trust deed or other lien thereon can be valid. •

The use of a block or more of ground, in a town or city, upon which the home is, in the manner and for the purposes for which such property is ordinarily used as a home, even though some of the uses may return nothing in a pecuniary way, and may be merely ornamental, or tending in some way to the comfort, convenience or pleasure of the place as a home, will protect as homestead the entire property.

When, however, there is a fixed intention, carried into execution, to no longer use for the purposes of a home, nor as a place to exercise the calling or business of the head of the family, a portion of the property, and to appropriate the same to some purpose other than that contemplated by the constitution, we see no reason why, if the same is done in good faith, panties may not thus bo permitted to abandon a part of that which may have been homestead, as absolutely and as clearty as they might abandon the whole property by ceasing to use and never intending again to use the property for the purposes for which the exemption is given.

If a person owning a block in a city upon which his home stands should erect thereon, solely for the purpose of renting them to others, large and costly buildings, to be used for mercantile or other purposes, a.nd should so use them, would any one suppose that it was the intention of the constitution to continue the homestead character to such property so used? We think not; and that it would be a perversion of the spirit, letter and purpose of the constitution, under such circumstances, to continue the homestead protection to property so used.

A lien, however, given upon property which in fact is homestead at the time the lien is given, is invalid, although there may be an intention, even evidenced by a designation in writing, of less than is actually used at the time as the home, to make the homestead not embrace the property upon which the lien is given, as in this case.

At the time the deed of trust through which the defendants in error claim was executed, the land between what is designated in the plat of the block, made a part of the statement of facts in this case, as “second fence,” and the fence between that and the houses, which on the plat is designated “ first fence,” which land on the plat is marked “ garden,” was used as a garden.

This was such use as fixed upon that property the homestead character at the time the deed of trust was given, and the mere designation of something less as the homestead cannot withdraw from it that character, any more than a mere' intention to abandon a homestead, unaccompanied wdth removal therefrom, can operate as an abandonment.

The property between the two fences above designated, being in fact and in law a part of the homestead at the time the trust deed was executed, it was invalid, and the defendants in error took no title to that property by the sale made under it.

In so far as the property between the fence marked “ second fence,” and indicated on the plat by a waved line, and the eastern line of the block, which includes all the land upon which the tenement houses were erected, is concerned, we are of the- opinion that the court did not err in holding that it had lost its homestead character at the time the deed of trust was executed.

At that time this part of the block had been severed from the rest of the block by a fence; was not used for any of the purposes of a home, but had been appropriated to purposes foreign thereto, and has not been, so far as the record shows, used for any home purpose since.

That persons may abandon a part of that which has been homestead, in good faith, and appropriate it to uses which will deprive it of its homestead character, while the other part may continue to be homestead, we have no doubt.

If such a transaction were only colorable, or if done by the husband in fraud of the rights of the wife, or in any manner with intent, the property really remaining homestead, to evade the provision of the constitution which prohibits the giving of liens upon the homestead, then the property would continue homestead, and a lien attempted to be given upon it void.

Such does not seem to have been this case; the judge who tried the case found to the contrary, and the evidence authorized the finding in so far as all the property east of the fence marked “ second fence” is concerned.

The cause having been tried without a jury, the judgment will be reversed, and as we are-unable to here render a judgment definitely fixing the dividing line between the property, which the parties respectively are entitled to have, the cause will be remanded at the expense of W. W. and Beulah Downing, with instructions to the court below, after ascertaining, so that 'it can be properly described in his judgment, where the fence marked in the plat made a part of the record in this cause “ second fence ” is situated, to adjudge to W. W. and Beulah Downing all that part of the land claimed in her petition which is situated east of the line at which the fence marked “ second fence ” is found to be, and that all of the property west of that line claimed in the petition be adjudged to Anton Medlenka, and that in all other respects the judgment be rendered as heretofore. And it is accordingly so ordered.

Judgment reversed.

[Opinion delivered February 23, 1883.]  