Clement v. First Nat. Bank

• Decision Date: 12 March 1924
• Docket Number: (No. 509-3940.)
• Citation: Clement v. First Nat. Bank, 259 S.W. 561 (Tex. 1924)
• Parties: CLEMENT v. FIRST NAT. BANK OF PARIS.
• Court: Texas Supreme Court

Page 561

259 S.W. 561

CLEMENT v. FIRST NAT. BANK OF PARIS.

(No. 509-3940.)

Commission of Appeals of Texas, Section A.

March 12, 1924.

Error to Court of Civil Appeals of Sixth Supreme Judicial District.

Suit by Mrs. M. N. Clement against the First National Bank of Paris. From a judgment of the Court of Civil Appeals (245 S. W. 719) affirming a judgment for defendant, plaintiff brings error. Reversed, and remanded with instructions.

Wm. H. Clark, of Dallas, and W. L. Willie, of Paris, for plaintiff in error.

Long & Wortham, of Paris, for defendant in error.

GERMAN, P. J.

In the year 1911, W. R. Clement and his wife, Mae N. Clement, established their homestead on a lot of land in the city of Paris, Tex., fronting 48 feet on Main street, which was the property of W. R. Clement. At the time said property was designated as a homestead, it was of the value of $8,400, exclusive of the improvements. On May 25, 1917, W. R. Clement, by deed of gift, conveyed to his wife a portion of said lot off the south, fronting 27 feet on Main street, and running back 108 feet. The balance of 21 feet by 75 remained in the name of W. R. Clement. At the date of the deed of gift W. R. Clement was indebted to the First National Bank of Paris in the sum of $300, and owned no property other than the homestead. Afterwards he borrowed other amounts from the bank, prior to his death in 1919. On February 2, 1921, the bank reduced its debt to judgment in the county court of Lamar county; the judgment amounting to $920, and being rendered against Mae N. Clement as the executrix of the estate of W. R. Clement. November 28, 1921, execution was issued on this judgment, and on November 29th was levied by the sheriff of Lamar county on the entire lot of land fronting 48 feet on Main street. It was advertised for sale on January 3, 1922, under said execution.

December 31, 1921, Mae N. Clement, in her own right and as executrix of the estate of W. R. Clement, filed this action in the district court of Lamar county, praying for an injunction to restrain the sale of said property, claiming that the whole of same was her homestead and was exempted from forced sale under the Constitution and laws of the state. Temporary injunction was issued. The First National Bank of Paris and the sheriff answered, claiming that the property covered by the writ of execution was not the homestead of Mrs. Clement, but also alleged that, if it were her homestead, there was an excess in its value over and above the constitutional limitation of $5,000. It was also alleged that the property was not susceptible of partition, and the prayer was for the court to dissolve the temporary injunction and that the property be sold; but, if the court should find that the same was the homestead of Mrs. Clement, then the excess thereof be applied to the payment of the judgment debt. There was also prayer for general and special relief.

A hearing was had March 27, 1922. The court found the facts as hereinbefore set out. The excess in value of the lot without the improvements was found to be $3,400, and this was apportioned by the court $1,470 to the north 21 feet and $1,890 to the south 27 feet. The temporary injunction was dissolved, and the sheriff was directed to proceed under the execution to sell the north portion of the lot fronting 21 feet on Main street and the proceeds thereof to the amount of $1,470 be applied to the satisfaction of the judgment. It was provided that if, from the sale of the north 21 feet, there was not realized a sufficient amount to pay the judgment out of the excess, then the south 27 feet be sold and the proceeds to the amount of $1,890 be applied to the payment of any balance due on the judgment. Mrs. Clement prosecuted an appeal to the Court of Civil Appeals at Texarkana, and there the judgment of the trial court was affirmed. 245 S. W. 719. A writ of error was granted by the Supreme Court for the purpose of hearing the case. The parties will be designated as in the trial court.

There is but one question raised and presented that requires our attention. Being a question concerning the homestead provisions of our Constitution, we have given it careful consideration, although the manner in which it was raised and presented on the appeal is by no means in strict compliance with the rules.

It now seems to be definitely settled in this state that an excess in the value of an urban homestead is subject to be levied upon and sold under execution to satisfy ordinary debts, and that when the property is not susceptible of partition it may be sold and the excess applied to the payment of such debts. Harrison v. First National Bank of Lewisville (Tex. Civ. App.) 224 S. W. 269, affirmed in (Tex. Com. App.) 238 S. W. 209; Barnett v. Eureka Paving Co. (Tex. Com. App.) 234 S. W. 1081. It seems also settled that when a...