McKenzie v. Mayer

• Citation: 20 S.W.2d 238
• Decision Date: 19 September 1929
• Docket Number: (No. 832.)
• Parties: McKENZIE et al. v. MAYER et ux.
• Court: Texas Court of Appeals

20 S.W.2d 238

McKENZIE et al. v. MAYER et ux.

(No. 832.)

Court of Civil Appeals of Texas. Waco.

September 19, 1929.

Appeal from District Court, Limestone County; W. R. Boyd, Judge.

Suit by William Mayer and wife against A. B. McKenzie, Sheriff of Limestone County, and another. Judgment for plaintiffs, and defendants appeal. Affirmed.

W. W. Mason, of Mexia, for appellants.

Walters & Kidd, of Mexia, for appellee.

GALLAGHER, C. J.

This suit was instituted by appellees, William Mayer and wife, Mrs. H. J. Mayer, to restrain appellants, A. B. McKenzie, sheriff of Limestone county, and Bewley Mills, a corporation, from selling a tract of land claimed by them as their homestead under an execution against them in favor of said corporation. A trial by the court resulted in a judgment perpetually enjoining such sale. Hence this appeal.

Opinion.

Appellants' first proposition presents as ground for reversal the action of the court in overruling their general demurrer to appellees' petition. Appellees alleged, in substance, that they were husband and wife; that they purchased said tract of land, consisting of three lots in a certain addition to the city of Mexia, in the year 1921; that they purchased the same for homestead purposes; that they occupied certain buildings thereon as a place of residence for the family; that they also conducted a baking business therein, and that said property thereby became both their residence and business homestead; that they had never abandoned the same, and that any absence by them therefrom was temporary; that they had always intended and still intended to return and occupy said property as a home; and that they had not since said property was first acquired and occupied, and did not at the time of trial, have any other homestead. Appellees further alleged that appellant Bewley Mills had theretofore sued them in the district court on an open account, and secured a judgment against them thereon for the sum of $1,165.85; that it caused an execution to be issued thereon and to be levied by appellant McKenzie on said lots; that he had advertised the same for sale under said levy; and that neither said judgment nor the indebtedness on which it was founded was enforceable against their homestead.

Appellants presented a general demurrer, which was overruled. They contend that the allegations upon which appellees based said homestead claim were insufficient, because they did not include an averment that the lots so claimed, exclusive of improvements thereon, did not exceed $5,000 in value at the time they were first designated as such by occupancy and use. The homestead interest in urban property cannot be seized and appropriated by an execution creditor. Only the excess value, if any, in the land constituting the homestead, can be subjected to the satisfaction of his demands. The procedure by which such excess can be reached by a creditor has been set out by our Supreme Court in Clement v. First National Bank, 115 Tex. 342, 350, 351, 282 S. W. 558. In that case the court enjoined the sale of homestead property under the original execution levied thereon, and directed that it be sold under order of sale issued on its judgment fixing the rights of the respective parties and directing the application of the proceeds of such sale. According to appellees' allegations in this case, appellants did not merely levy on a purported excess value in said lots, but, on the contrary, levied on the entire interest therein, including the improvements thereon, and asserted the right to sell the same and apply the proceeds of such sale to the satisfaction of said judgment, to the exclusion to that extent of any claim thereto by appellees.

Our statutes with reference to the seizure and sale of property under execution contemplate that the proceeds of such sale shall be paid by the sheriff to the execution creditor to the extent of his demand, and that only the remaining surplus, if any, shall be paid to the owner of the property. Rev. St. 1925, arts. 3824 and 3827. Such a sale would deprive appellees of their homestead exemption, and could therefore be properly enjoined, regardless of the value of said lots constituting the homestead. Clement v. First National Bank, supra. We think it follows, therefore, that appellants' allegations were sufficient to support the judgment of the court restraining the sale of the property levied on under said execution, and that it devolved upon appellants to allege that an excess in value existed, and to invoke the equitable powers of the court to subject such excess to their debt. Appellants' general demurrer was properly overruled. Hargadene v. Whitfield, 71 Tex. 482, 490, 491, 9 S. W. 475; Fitzhugh v. Connor, 32 Tex. Civ. App. 277, 74 S. W. 83, 84; Gallagher v. Keller, 4 Tex. Civ. App. 454, 23 S. W. 296, 298; Chalk v. Daggett (Tex. Com. App.) 257 S. W. 228, 232; Lyttle v. Harris, 2 Posey, Unrep. Cas. 21.

Appellants by another proposition contend that, if appellees had ever established a homestead upon the property levied on, they had long since abandoned the same, and that such property was subject to execution at the time of said levy. Appellee Mayer testified that he came to Mexia in 1920 or 1921, during an oil boom; that he bought the first two lots levied on by appellants while cotton was growing upon them; that he erected thereon a combined residence and bakery all under one roof; that he and his family resided in the front part of said building, and that he conducted his bakery business in the rear thereof; that he subsequently bought a third lot adjoining the other two; that in March, 1925, a fire occurred, which destroyed most of the residence portion of said building, and also seriously...