Gates v. Pitts

• Court: Texas Court of Appeals
• Writing for the Court: Hall
• Citation: Gates v. Pitts, 2 S.W.2d 307 (Tex. App. 1927)
• Decision Date: 30 November 1927
• Docket Number: (No. 2923.)
• Parties: GATES et al. v. PITTS et al.

2 S.W.2d 307

GATES et al. v. PITTS et al.

(No. 2923.)

Court of Civil Appeals of Texas. Amarillo.

November 30, 1927.

Rehearing Denied January 4, 1928.

Appeal from District Court, Motley County; J. H. Milam, Judge.

Injunction suit by Mrs. W. B. Gates and another against D. E. Pitts and another. Judgment for defendants, and plaintiffs appeal. Affirmed.

See, also 291 S. W. 948.

Bouldin & Fish, of Matador, for appellants.

Hamilton & McMath, of Matador, for appellees.

HALL, C. J.

The appellee Pitts recovered a judgment in the county court of Motley county against W. B. Gates, one of the appellants, and foreclosed an attachment lien on lot 1, block 18 in the town of Flomot in said county. An order of sale was issued and levied on the lot by the sheriff, and this suit was instituted by Mrs. Gates, joined by her husband, W. B. Gates, in the district court of Motley county, against the sheriff and Pitts, for an injunction restraining the sale of the property under the order of sale and against Pitts for damages.

The ground of the injunction was that the property levied upon was the homestead of the plaintiffs and was not subject to forced sale. The appellees answered, alleging in substance: That after acquiring the land described in their petition, plaintiff Gates, as the head of a family, joined in a dedication deed and plat with other grantors, whereby certain streets, lots, blocks, and alleys were dedicated in establishing the town of Flomot upon lands owned by the grantors in the dedication deed. That said deed and plat were duly recorded in the records of Motley county. That eight and a fraction acres of Gates' land was included in the town plat. That, as platted, a street ran eastward from Gates' residence known as Gates street, and was 75 feet wide. That on the north side of this street were situated Gates' general merchandise store and post office, facing on Main street, and that Main street ran north and south. That across Gates street south of his store was lot 1, block 18, involved in this suit. This lot faced eastward on Main street. That in 1924, Gates had purchased a building previously used as a garage by other parties, and moved it upon the lot in question. That he had laid a concrete floor in the building 30 by 50 feet and had an office cut off in one corner thereof about 14 feet square, and a shed built in front for a driveway. That the building was equipped with underground gasoline tank, visible overhead distribution tank, a Delco dynamo, and all tools and equipment for repairing automobiles, including an air compressor and accessories and parts of automobiles usually carried by such establishments. That his stock of accessories had been bought on wholesale terms. That he had employed a mechanic to conduct the business as a public garage and filling station, serving the public generally from about August 24th until March 1, 1926. It was shown that he had purchased from $800 to $1,000 worth of gasoline and oil per month during that period, and that the debt which formed the basis of the county court judgment was for such supplies sold him by Pitts to carry on his garage business. The appellee further charged that Gates had, for several years, exercised his calling and occupation as a merchant at his store, and was still so engaged, and that the store constituted his business homestead at the time of the levy of the attachment, and that when said lot 1, block 18, was devoted to the business of a public garage, it being disconnected from his residence or his store by the street, it was a separate business enterprise and ceased to be a part of his urban homestead; that at the time Gates had purchased the building which he moved upon said lot, he borrowed money from a bank to pay for the same and executed a deed of trust on the lot and building to secure the loan; that Gates' homestead was an urban homestead, being in a town of from 300 to 500 inhabitants.

The case was submitted to a jury on special issues, the substance of the findings being as follows:

(1) That after acquiring the property in question, Gates operated and permitted others to operate the garage and filling station on said property, with the intention thereafter to devote the property to the principal use of a place of business;

(2) That Gates had not, at the time the writ of attachment sued out by Pitts was levied upon the property, abandoned the use of said lot as a place of business, with the intention thereafter of using it principally as a part of his homestead.

Based upon this verdict, the court denied the injunction, but stayed the execution of the order of sale pending the appeal.

From this judgment, Gates and wife have brought the controversy to this court.

The statement of facts shows that the appellant Gates, together with other landowners, executed and recorded a dedication deed and plat, which divided his property, with that of the other landowners, into lots and blocks, constituting the plat of the town of Flomot, and that lot No. 1, involved in this suit, is on the northeast corner of block 18. This lot fronts on Main street, which runs north and south, and Gates street, running east and west, is the north line of this lot and of block 18. An alley runs through the block from north to south, separating this lot from the west half of the block, upon which Gates' dwelling, barn, barnyard, and poultry house are built. Lot 1 is not in the curtilage used by appellants as their homestead, but is outside of the inclosure. The building used by Gates as his store and in which his general mercantile business was conducted is across Gates street and north of block 18, and also fronts on Main street, so if lot No. 1 is exempt, it must be protected, not as a business homestead, but as a part of the residence property; for the reason that a merchant engaged in selling dry goods and groceries cannot claim another place of business separate or distinct from it as being exempt. He is entitled to only one place of business and what is inseparably connected therewith in order to its enjoyment. Pfeiffer v. McNatt, 74 Tex. 641, 12 S. W. 821; Parrish v. Frey, 18 Tex. Civ. App. 271, 44 S. W. 322; McDonald v. Campbell, 57 Tex. 614; Woeltz v. Woeltz (Tex. Civ. App.) 57 S. W. 905; Wingfield v. Hackney, 30 Tex. Civ. App. 39, 69 S. W. 446; Gibbs v. Hartenstein (Tex. Civ. App.) 81 S. W. 59.

Then the question is, can the appellants claim this lot as exempt from forced sale, because it was in fact, and in a...