Ford v. Forsgard

• Decision Date: 27 June 1894
• Citation: 27 S.W. 57
• Parties: FORD et al. v. FORSGARD et ux.
• Court: Texas Supreme Court

27 S.W. 57

FORD et al. v. FORSGARD et ux.

Supreme Court of Texas.

June 27, 1894.

Error from court of civil appeals of third supreme judicial district.

Suit by S. J. Forsgard and wife against Dan Ford and others. From a judgment of the civil court of appeals modifying the judgment of the district court, plaintiffs bring error. Reversed.

Robertson & Davis, for plaintiffs in error. Baker & Prendergast, for defendants in error.

BROWN, J.

This suit was instituted in the district court of McLennan county to enjoin the sale by Dan Ford, sheriff of said county, of one-half of lots 4 and 5, and all of lots 10, 11, and 12, in block No. 2 in the city of Waco. Mary A. Hanna recovered a judgment against S. J. Forsgard for $4,182.30, and defendants T J. Harper, M. M. Harper, Mary A. Hanna, F. J. Vesey, and J. B. Vesey recovered judgment against said Forsgard for $1,079.48, upon each of which judgments execution was issued, placed in the hands of sheriff, and by him levied upon the property described above. The plaintiffs, Forsgard and wife, claimed the lots as part of their homestead, and the district judge issued a writ of injunction, enjoining the sale of the lots, which, upon trial before the court, were found to be exempted, as part of the plaintiff's homestead, and the injunction was perpetuated. Upon appeal the court of civil appeals (25 S. W. 445) found that so much of lot 5 as is covered by a one-story brick building was subject to forced sale, and that all of that half of lot 5 involved in the suit was part of the homestead, and exempted, but that two rooms on the first floor of the building were not exempted, and decreed that these rooms be sold; dissolving the injunction as to so much of lot 5 as was covered by the one-story brick building, and as to the two rooms in the building on lot 4. Under the findings of facts by the court of civil appeals, the judgment of that court, as to the one-story brick and that part of lot 5, must be affirmed.

The facts, as found by the court, with reference to the half of lot 4, are, in substance, that lot 4 fronted on Bridge street 25 feet, with a two-story house upon it, covering the entire front, and runing back 85 feet. Under the entire house, running up to the front, was a cellar. The first floor above the cellar was divided into three rooms by running a partition across the house 25 feet from the front, and another partition dividing the front into two rooms fronting on the street. The court of civil appeals finds that the entire lot under the house is exempted, as homestead, by reason of its use; that the rear room on the first floor and the second story are likewise exempted; but that the two front rooms on the first floor are not exempted, they having been abandoned as homestead, and rented out for other uses. The question presented is, can a part of a house standing on a lot that is homestead be subjected to forced sale, under our constitution and laws? The house upon lot 5 was a fixture, within the meaning of the law, and, as such, was a part of the land itself. A sale of the land would carry the house, and every part of it. Hutchins v. Masterson, 46 Tex. 555; Sinker, Davis & Co. v. Comparet, 62 Tex. 476. The house, being attached to, and a part of, the realty, could not be seized and sold separately from the land. Willis v. Morris, 66 Tex. 628, 1 S. W. 799. The constitution of this state (article 16, § 51) defines an urban homestead in this language: "The homestead in a city, town or village, shall...