Freiberg v. Walzem

• Decision Date: 14 June 1892
• Citation: 20 S.W. 60
• Parties: FREIBERG <I>et al.</I> v. WALZEM.
• Court: Texas Supreme Court

20 S.W. 60

FREIBERG et al. v. WALZEM.

Supreme Court of Texas.

June 14, 1892.

Commissioners' decision. Section A. Appeal from district court, Bexar county; GEORGE H. NOONAN, Judge.

Suit by Freiberg, Klein & Co. against Andrew Walzem to foreclose a judgment lien upon property owned by defendant and acquired by him after abstract of judgment against him, filed in the county where the property was situate. Judgment for defendant. Plaintiffs appeal. Affirmed.

C. K. Breneman and Upson & Bergstrom, for appellants. J. M. Taylor and C. L. Wurzbach, for appellee.

MARR, J.

This suit was instituted by the appellants, Freiberg, Klein & Co., against the appellee, Andrew Walzem, in the district court of Bexar county, Tex., on the 10th day of June, 1889, to foreclose a judgment lien for the sum of $1,674.19 upon property owned by defendant, and acquired by him after an abstract of the judgment against him had been filed in the county where the property is situated. Defendant alleged that he had acquired the property for the purpose of a home for himself and family, and immediately used and occupied the same as a home. The cause was tried on October 12, 1889, without a jury, and judgment rendered for defendant, from which judgment plaintiffs appealed to this court, and assign the following error: "The court erred in finding for the appellee, Andrew Walzem, against the lien claimed by appellants, on the ground that the property described in plaintiff's petition upon which the judgment lien is claimed and sought to be foreclosed was the homestead of appellee, Walzem, in this: that the facts show that appellants' (Freiberg, Klein & Co.'s) judgment was of record in Bexar county before and at the time appellee, Walzem, acquired title to the property set out in appellants' petition, and therefore appellants' lien attached to the property ahead of and was and is superior to, appellee's homestead claim therein." The land in dispute is a house and lot "on Avenue D and Seventh street, in the city of San Antonio, acquired by appellee by deed from Fritz Schreiner, dated March 23, 1889." The abstract of plaintiff's judgment was duly recorded and indexed in the proper records of Bexar county on the 13th day of March, 1886. The appellee, Walzem, proved "that he was at the institution of this suit, and had been for several years prior thereto, a married man, and the head of a family, consisting of himself, his wife, and one child; that on the 19th day of April, 1886, he purchased the lot No. 14, in block 36, on Avenue C, in the city of San Antonio, with the proceeds of the sale of his former homestead, and built a house on it, and lived therein, and occupied it with his family continuously for more than three years as their homestead; that on the 19th day of March, A. D. 1889, defendant and his wife sold their said Avenue C homestead to Leopold M. Michael for $3,000, with the intention of investing the said money in another homestead; that on the 23d day of March, A. D. 1889, defendant purchased from Fritz Schreiner the house and lot on the corner of Avenue D and Seventh street in the city of San Antonio, with the intention and for the purpose of making it his homestead, and paid therefor the $3,000 realized by him as aforesaid from his said Avenue C homestead; that defendant had, a short time prior to the sale of his Avenue C homestead, temporarily rented it, and was renting and occupying the said house and lot on Avenue D (with the intention of purchasing the same and making it his homestead whenever he sold his said Avenue C homestead) at the time he purchased it from the said Fritz Schreiner, and is...