Coates v. Caldwell

• Decision Date: 29 May 1888
• Citation: 8 S.W. 922
• Parties: COATES v. CALDWELL <I>et al.</I>
• Court: Texas Supreme Court

Page 922

8 S.W. 922

COATES v. CALDWELL et al.

Supreme Court of Texas.

May 29, 1888.

Appeal from district court, Dallas county.

The provisions of the Revised Statutes respecting homesteads are as follows: "Art. 2343. 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 from 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. Art. 2344. 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 or a part thereof may be, an instrument of writing containing a description, by metes and 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."

Marshall & Gillespie and Stemmons & Field, for appellant. S. W. Caldwell and W. M. Mann, for appellees.

GAINES, J.

This suit was brought by appellant Coates to restrain the sale of certain cotton levied upon under execution against him. The writ was issued upon a judgment rendered in a justice's court for $70 in favor of appellee Caldwell, and was levied upon the cotton by appellee Massie, who was constable of the precinct. The property levied upon consisted of about 1,800 pounds of cotton picked but not removed from the field, and about 1,050 pounds matured but not picked. The petition alleged that the cotton was raised upon the homestead of plaintiff, and claimed that it was exempt from levy and sale on that ground. The defendants denied in their answer that the land upon which the cotton was grown was the homestead of the plaintiffs; denied also the exemption in any event, and pleaded in reconvention the loss of the debt as damages for the wrongful suing out of the injunction. The sureties upon the injunction bond were not cited to answer the plea in reconvention, but upon final hearing the court dissolved the injunction, and gave judgment in favor of Caldwell against them, as well as against the plaintiff for his damages to the amount of his debt, as claimed by him. All the defendants in the judgment appeal. It is assigned that the court erred in dissolving the injunction; and also in rendering judgment against the sureties on the injunction bond, without service of citation of the plea in reconvention. As bearing upon the question of the exemption, appellees insist that the testimony does not show that the land upon which the cotton was grown was the homestead of plaintiff. The plaintiff testified that the land consisted of 160 acres, upon which he lived with his family, (a wife and five children;) that it constituted his home both at the time the cotton was grown and when the levy was made, but that he "had never had designated it as such;" and that he owned another tract of 90 acres in another county, which was not fully paid for. Appellees claim that he must have designated his homestead before he could claim his place of residence as exempt. We think, however, that by living upon the land with his family, as his home, the plaintiff designated this property as his homestead. There being less than 200 acres, it was not necessary to define the boundaries. We presume the witness meant to say that he had never designated his homestead in the mode provided for by the statute, (Rev. St. art. 2343 et seq.;) but the statute applies to cases in which exemptions are claimed in tracts of land which exceed the limit allowed by the constitution and laws.

The levy upon the cotton presents two questions which have not been decided in this court: (1) Is cotton which has been grown upon the homestead subject in any event to the levy of an execution? (2) Is a matured crop not severed from the homestead so subject? In Alexander v. Holt, 59 Tex. 205, it is held that the crops upon a homestead while growing are exempt from execution; but nothing is said as to those which are ripe, but not harvested or gathered. Conceding, for the sake of the argument, that an unsevered crop not upon the homestead is subject to levy and sale, we have quite a different question here. Upon a levy upon such property the officer must either take possession of the land to gather the crop or must sell it ungathered. In the latter case, the right would pass to the purchaser at the sale to go upon the land and take off the crop. In order to complete a sale or to make it effective, possession must be taken of the land upon which the crop is found, and for a time at least the officer or...