Shaw v. Head

• Decision Date: 08 December 1932
• Docket Number: No. 1295.,1295.
• Parties: SHAW, Banking Com'r, v. HEAD et al.
• Court: Texas Court of Appeals

55 S.W.2d 190

SHAW, Banking Com'r, v. HEAD et al.

No. 1295.

Court of Civil Appeals of Texas. Waco.

December 8, 1932.

Appeal from District Court, Bosque County; O. B. McPherson, Judge.

Suit by J. P. Head and another, against James Shaw, Banking Commissioner, and another. From a judgment in favor of plaintiffs, named defendant appeals.

Affirmed.

John W. Goodwin and J. H. Brown, both of Austin, for appellant.

Tirey & Tirey, of Waco, for appellees.

BARCUS, J.

On September 24, 1931, appellant obtained judgment in the district court of Bosque county against J. P. Head for $4,000, the amount due by him for an unpaid subscription to stock in the state bank of Walnut Springs, the subscription to said stock having been made on December 20, 1929. An abstract of said judgment was duly recorded in Bosque county on October 16, 1931. On November 20, 1931, execution was issued on said judgment and levied upon lots 11 and 12, in block 2 of the town of Walnut Springs as the property of appellee J. P. Head. On December 31, 1931, this suit was instituted by appellees J. P. Head and R. G. Head against the sheriff of Bosque county and James Shaw, Banking Commissioner of Texas, to restrain the sale of said property under and by virtue of said execution, R. G. Head claiming title to the property and J. P. Head claiming the property as his business homestead. The cause was tried to the court and resulted in a permanent injunction being issued restraining the sale of said property. The banking commissioner alone appeals.

The record discloses that J. P. Head was 76 years of age, had lived many years in Walnut Springs, and been in the service of the railroad company, from which employment he retired May 1, 1930. He owned lots 11 and 12, the property in controversy, on which about 1925 he built a business house and rented same to Carlton Bros. by the month and said tenant conducted a mercantile business in said property. At different times beginning in 1929, prior to the time J. P. Head retired from the railroad service in May, 1930, he discussed with Carlton Bros. the question of opening a rental and insurance business, using a portion of the building for his office, and they agreed thereto. At the time of his retirement from the railroad service, J. P. Head was in very poor health and he devoted some months at health resorts to regain his strength. In the fall of 1931 he opened his real estate and insurance business and occupied a portion of said building as his office and place of business. On December 2, 1929, J. P. Head by general warranty deed conveyed the property in question to his son, R. G. Head, retaining...