McDowell v. Northcross

• Decision Date: 20 December 1913
• Citation: 162 S.W. 13
• Parties: McDOWELL v. NORTHCROSS et al.
• Court: Texas Court of Appeals

162 S.W. 13

McDOWELL v. NORTHCROSS et al.

Court of Civil Appeals of Texas. Amarillo.

December 20, 1913.

Appeal from District Court, Collingsworth County; J. A. Nabers, Judge.

Action by O. L. Northcross and others against T. W. McDowell. From a judgment for plaintiffs, defendant appeals. Reversed and remanded.

R. L. Templeton, of Wellington, for appellant. R. H. Templeton, of Wellington, for appellees.

HALL, J.

Appellee O. L. Northcross filed this suit in trespass to try title against T. W. McDowell, to recover a storehouse and lot, situated in the town of Dodsonville, Collingsworth county. Plaintiff alleges that on the 15th day of November, 1912, he was lawfully seized of lots Nos. 27 and 28, in block 40, in said town, on which day the appellant entered upon the premises and ejected him therefrom, to his damage in the sum of $500, and the rental value of the property, viz., $25 a month; that said property was purchased from J. B. Castleberry, the assignee of appellant, at the instance of appellant.

The case was tried before the district Judge, without a jury, who decreed the land to J. B. Castleberry, the assignee of appellant. It appears from the statement of facts that appellant, McDowell, was in business on the property involved in the suit, and on the 30th day of January, 1912, executed a statutory assignment, conveying "unto the said J. B. Castleberry all his real and personal estate other than that which is by law exempt from execution." The schedule of property filed with the assignment does not list his home and the property involved in this suit, which he claims as his business homestead, as part of the estate delivered to the assignee. After the execution of the assignment, the assignee, Castleberry, took charge of the property, consisting of dry goods and groceries, then located in the business homestead. The business homestead was a double house, situated upon adjoining lots; one of the compartments containing dry goods, and the other groceries. From the date of the execution of the assignment until some time in August following the appellant continued to carry on the business. It appears that, soon after the execution of the assignment by an agreement between the creditors and the assignee, appellant was permitted to carry on the business, upon condition that he would turn the proceeds over to the assignee. He testified that the assignment was made for the purpose of letting the business run on while he endeavored to pay out, and it appears that it was understood, if he could pay the creditors by conducting the business, it was to be redelivered to him. Having failed to satisfy the creditors, the property was, about the 25th of September, taken into possession by the assignee, and sold at public auction. In this sale was included the house and lots to appellee Northcross. Becoming dissatisfied with his purchase, Northcross subsequently reconveyed the property to the assignee, and this contest is between the assignee, Castleberry, and appellant. Appellee has filed no brief. The appellant's brief does not comply with the rules in many particulars; but, since there is no objection to its consideration, we have decided to pass upon the assignment and propositions presented.

The questions for consideration are: Did the business homestead pass by virtue of the assignment? If not, has it been abandoned as a business homestead since the execution of the assignment? And if so, did the sale by the assignee on September 12th divest appellant of all title?

The rule is that, if a business homestead is exempt at the date of the assignment, it did not pass to the assignee by virtue of that instrument. City National Bank v. Merchants' National Bank, 7 Tex. Civ. App. 584, 27 S. W. 848; L. L. & G. Ins. Co. v. Ende, 65 Tex. 118. It is held, in Wynne v. Hudson, 66 Tex. 1, 17 S. W. 110, that residence property does not pass to the assignee, even though it is afterwards abandoned as a residence homestead. In order to constitute an abandonment of a business homestead, the head of the family must cease to use it for the purposes for which it is exempt, and have no present intention to resume business on the property. Tackaberry v. Citizens' National Bank, 85 Tex. 488, 22 S. W. 151, 299; Sanger Bros. v. Hicks, 22 Tex. Civ. App. 473, 56 S. W. 775; Willis v. Pouns, 6 Tex. Civ. App. 512, 25 S. W. 716. It is held, in Alexander v. Lovitt, 56 S. W. 685, that the intention to resume business and occupy the business homestead upon a cessation of business must continue to exist, but that the question of intent is one of fact. Stayton, Chief Justice, in Tackaberry v. Citizens' National Bank, supra, said: "The business was practically destroyed by the conveyance [assignment] of the things necessary to its existence, and the same inferences as to discontinuance of business ought not to be drawn in the two cases solely from the fact that an assignment was made. If it was shown that the business, however, was carried on until the very moment the deed became operative, we do not see that, upon principle, the result would be different, for all persons making such conveyances do so with the knowledge that the act, in its consummation, destroys the business, and must be held to have contemplated the result. Thus is furnished one of the facts on which abandonment must depend." In this case, Mrs. Tackaberry included her business homestead with the personal property in the schedule. The opinion continues: "It is fairly evident that the assignor did not understand that it was her duty to make a schedule of all her property, exempt and unexempt, and while, as before said, the schedule cannot be made to convey property exempted from the operation of the deed, it may be true that it ought to be looked to, in the light of the facts of the case, to ascertain what she understood to be exempt property, and therefore not conveyed. She must be supposed to have comprehended the facts on which exemption depended, and it is not unfair to infer, when she omitted from the schedule property clearly exempted, that she understood the situation of the schedule property to be such that exemption could not be given to it; that the business had ceased, without intention to resume it, or to begin and prosecute some other on the property, through which exemption might be continued even after temporary suspension. The exception in the deed has effect without bringing the property in controversy within its operation, and we are of opinion that the trial court, under the evidence, might have found that the business ceased before the delivery of the deed, and was bound to find in any event that it ceased simultaneously with the delivery of the deed, and, in view of the judgment, it ought now to be presumed that such was the finding. The evidence shows beyond controversy that the assignor had no fixed intention at any time, either to resume the business she had formerly carried on, or to conduct some other business on the lots such as would have continued the exemption, notwithstanding a temporary cessation."

The record in this case discloses a different state of...