National Bank of Denison v. Kilgore

• Decision Date: 11 December 1897
• Citation: 43 S.W. 565
• Parties: NATIONAL BANK OF DENISON v. KILGORE et al.
• Court: Texas Court of Appeals

43 S.W. 565

NATIONAL BANK OF DENISON v. KILGORE et al.

Court of Civil Appeals of Texas.

December 11, 1897.

Appeal from district court, Grayson county; Don A. Bliss, Judge.

Suit by the National Bank of Denison against S. C. Kilgore and others to foreclose a mortgage. From a judgment excepting part of the property as exempt, plaintiff appeals. Affirmed.

N. H. L. Decker and Maughs & Peck, for appellant. R. R. Hazlewood and Standifer & Eppstein, for appellees.

HUNTER, J.

The district court, upon the motion of appellant, and by consent of appellees, entered judgment in this cause in appellant's favor in all respects except as to $300 rental value of block 86, which, in effect, by the motion, was conceded to be exempt from forced sale as part of appellee Kilgore's homestead. This $300 was awarded Kilgore by the jury as the rental value of block 86 during the time which appellant held the block under a writ of sequestration pending suit to foreclose a mortgage thereon, which mortgage was void because the block was a part of Kilgore's homestead at the time of its execution. There are numerous assignments of error complaining of the action of the district court on the trial of the cause, all of which we overrule, because by appellant's said motion the court granted the judgment it prayed for in the motion in every particular except as to allowing this $300 to be applied in satisfaction pro tanto of a $2,051.50 judgment it obtained by the same motion against Kilgore on a note, the judgment declaring the said $300 as exempt from the debts of Kilgore. Now, whether it was exempt is the only question in this case. Appellant, in effect, admitted in its motion that the block was not subject to its mortgage. The only reason claimed for the exemption was that it was part of Kilgore's homestead. It raises the question of the exemption of this block again by its assignments of error, and raised it in the court below by its motion for a new trial; but we think it was estopped by the record from raising the question again after procuring the court to grant its motion aforesaid, wherein it waived its right to foreclose on this block by reason of its homestead character. If the block was part of Kilgore's homestead, and thus exempt from seizure for the payment of his debts, we think the money allowed him by the jury and court for the rental value of the block by way of damages during a wrongful seizure and detention of it would be exempt also. The exemption would be...