Harston v. Langston

• Decision Date: 22 December 1926
• Docket Number: (No. 7027.)
• Citation: 292 S.W. 648
• Parties: HARSTON, Sheriff, et al. v. LANGSTON et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

292 S.W. 648

HARSTON, Sheriff, et al. v. LANGSTON et al.^*

(No. 7027.)

Court of Civil Appeals of Texas. Austin.

December 22, 1926.

Rehearing Denied January 12, 1927.

Writ of Error Refused March 9, 1927.

Appeal from District Court, Dallas County; Royall R. Watkins, Judge.

Action by the Dallas Lumber Company against L. Q. Langston and others. Judgment for plaintiff, on which execution was issued. After motion against Dan Harston, Sheriff, and his bondsmen for failure to collect the execution, judgment was rendered against them, and they appeal. Affirmed.

Holland, Bartlett, Thornton & Chilton, of Dallas, for appellants.

Thorne, Brown & Renfro, Connie C. Renfro, and Chas. S. McCombs, all of Dallas, for appellees.

BLAIR, J.

Appellee Dallas Lumber Company recovered judgment against L. Q. Langston for $648.35, with interest and costs, upon which execution was issued and placed in the hands of appellant Harston, sheriff of Dallas county, who levied upon certain of Langston's real estate, but did not sell it, because, as stated in his return, Langston filed with him an affidavit claiming the property as the homestead of himself and family. By motion filed in the suit out of which the execution issued, appellee lumber company alleged that, by reason of the facts stated, the failure of the sheriff to sell the land levied upon damaged it in the amount of its judgment, interest, and costs, and prayed for judgment against the sheriff and his bondsmen under provisions of article 3776 (3825, Revised Statutes 1925), which reads:

"Should an officer fail or refuse to levy upon or sell any property subject to execution, when the same might have been done, he and his sureties shall be liable to the party entitled to receive the money collected on such execution for the full amount of the debt, interest and costs, to be recovered on motion before the court from which said execution issued, five days previous notice thereof being given to said officer and his sureties."

Appellants, the sheriff and his bondsmen, set up the homestead character of the premises levied upon in defense of the suit on the motion. The homestead issue was tried to the court without a jury, and, after hearing the evidence, the court rendered judgment against appellants as prayed for by appellee lumber company. We affirm the judgment.

In reference to the homestead question, the testimony is uncontroverted, and shows that L. Q. Langston purchased a lot of land, about 50 feet wide and 150 feet deep, on the corner of Cedar Hill avenue and Netches street, in the city of Dallas, for $1,250, and built thereon a five-room house, facing west on Cedar Hill avenue, about 25 feet back from the street line, and built a garage east of the house; and, when the house was sufficiently complete, he occupied it with his family as their homestead for about two years. He then purchased an old house, which he tore down, and attempted to use the material to put a second story on his house, but, after deciding that the foundation was insufficient, abandoned the project, and reconstructed the house to its former state. With the old lumber purchased he erected on the lot just back of the house fronting on Cedar Hill avenue a four-room house with shed kitchen, fronting Netches street, and moved into it with his family about two years prior to the levy of the execution on the premises fronting Cedar Hill avenue, and has continuously occupied it as a home for himself and family. He also erected between the two houses three box garages, about 30 feet wide and 14 feet deep. He then rented continuously the Cedar Hill avenue house and one of the garages to tenants; and, at the time of the levy, the premises were occupied by a tenant who was paying $37.50 per month rent, which he considered reasonable. Langston retained two of the garages for his own use. The tenants used the premises in the fullest sense, and, as all rental property is used, to the exclusion of Langston and all others. Langston did not use the rented property for any family purposes. He used the rentals to pay debts on the premises and for other family purposes. There was a space of about 10 feet between the garage and the tenant's house which the tenant used, and, in addition, used land fenced back of the garage as a little chicken run. As between Langston and his tenant the portion of the premises occupied by the tenant was well defined. The tenant kept flowers and shrubbery in his yard, which were cared for by his wife and daughter. Langston had flowers in front of the property occupied by him, which were separate and distinct from those of the tenant, and each family worked their own flower beds. That, with the exception of some water furnished by Langston, the tenant watered the flowers and shrubs, paid for the trimming and pruning necessary, and cut his own part of the lawn; and Langston did the same with reference to the portion of the premises facing Netches street. Both houses were kept well and nicely painted by Langston. The house facing Netches street had a separate and distinct foundation, roof, water connection, separate meters, and separate light connections, and there were all conveniences in the Cedar Hill avenue house, including gas connection, hot water heater, and telephone. Langston gave his address as 615 Netches street. The tenant's address was that of the Cedar Hill avenue house. Langston testified, in one instance, that he intended at some future date...