Harbison v. Tennison

• Decision Date: 28 November 1896
• Citation: 38 S.W. 232
• Parties: HARBISON et al. v. TENNISON.
• Court: Texas Court of Appeals

38 S.W. 232

HARBISON et al. v. TENNISON.

Court of Civil Appeals of Texas.

November 28, 1896.

Appeal from district court, Parker county; J. W. Patterson, Judge.

Action by W. H. Tennison against Harbison and Gathright to enjoin a sale of land on execution. From a judgment for plaintiff, defendants appeal. Affirmed.

Howard Martin, and G. A. McCall, for appellants. Jasper N. Haney, for appellee.

HUNTER, J.

Appellants obtained a judgment against appellee, caused execution to be issued thereon, and levied on a certain house and lot in Weatherford, Tex., which at the time belonged to appellee, but was occupied by a tenant. Appellee had purchased the property in 1886, and he and his wife and stepson had resided thereon, claiming, using, and occupying it as a homestead, until in 1894, during which time, it seems, he was engaged in the business of a saddle and harness maker in the city of Weatherford, carrying on the business in his own storehouse. In April, 1894, he became embarrassed, and sold his entire stock of goods and storehouse to H. L. Gurley, binding himself in the written contract of sale not to engage in the said business in Weatherford, either for himself or for any other person, for the period of 10 years from that date, and also entered into a written contract with said Gurley, renting his said homestead to him for 10 years at $10 per month, Gurley to keep it in good repair, and return it to him at the end of the lease, or in case he should sell it, which he reserved the right to do, Gurley was to give possession within 10 days. Appellee then took his wife to Los Angeles, Cal., where she yet remains; while he left there, and went to Ardmore, Ind. T., where he began work in the saddlery business for his brothers, Tennison Bros. His wife and he have not separated, but she is living in rented rooms at Los Angeles, and will come to him at any time. He has received letters from her often since he left her in California. This suit was brought in the district court of Parker county to enjoin the sale of said homestead lot, upon the ground that the property was still the homestead of appellee, and that he had only temporarily rented it, had never abandoned it as a homestead, but has always intended to return to it, but is unable to say when he will return; says it may be one, five, or ten years. He "never votes anywhere else, and considers the property in Weatherford as his home." He tried to sell it before he left Weatherford, and advertised it in the papers for sale, his intention being to invest the proceeds in a larger and better home in Weatherford. He owns no other home, and claims no other. He has applied the rents to the support of his family. He intends and expects to again occupy it as his home. He claims that he...