Swearingen v. Bassett

• Court: Texas Supreme Court
• Writing for the Court: ROBERTSON
• Citation: Swearingen v. Bassett, 65 Tex. 267 (Tex. 1886)
• Decision Date: 15 January 1886
• Docket Number: Case No. 2130
• Parties: J. T. SWEARINGEN AND C. C. GARRETT, ASSIGNEES, v. M. J. BASSETT ET ALS.

65 Tex. 267

J. T. SWEARINGEN AND C. C. GARRETT, ASSIGNEES,

v.M. J. BASSETT ET ALS.

Case No. 2130

Supreme Court of Texas.

Jan. 15, 1886.

APPEAL from Washington. Tried below before the Hon. W. H. Burkhart.

The appellants Swearingen and Garrett, plaintiffs below, brought this suit against B. H. Bassett, and Martha J. Bassett and her children, widow and children of Jefferson Bassett, deceased, to recover a lot and improvements in the city of Brenham, claimed by plaintiffs as assignees under a deed of assignment made by B. H. Bassett as surviving partner of the late firm of Bassett & Bassett, composed of himself and Jefferson Bassett, for the benefit of accepting creditors of the firm.

The facts, as disclosed by the plaintiffs' petition, are as follows: On May 25, 1885, the defendant B. H. Bassett and Jefferson Bassett were doing business as bankers in the city of Brenham, Washington county, under the firm name and style of Bassett & Bassett, and had been doing business as such ever since 1865. B. H. Bassett was at that time also a lawyer engaged in the active practice of his profession, and was associated with one John Sayles under the firm name of Sayles & Bassett, and had been so associated for more than twenty years, and is still so associated. When the firm of Bassett & Bassett began business B. H. Bassett and Jefferson Bassett owned in partnership a certain lot of land, situated in the city of Brenham, at the intersection of Main and Market streets, fronting twenty-six feet ten inches on Main street and running back seventy feet with Market street. During the year 1874 they built on the lot a two-story brick house, the lower story of which was fitted up and furnished with counters, railings, and a fire-proof vault built around a burglar-proof safe, so that the safe could not be removed without injury to the vault, and was occupied by Bassett & Bassett as a banking house in which to conduct and carry on their banking business; the upper or second story was fitted up as law offices and occupied by the law firm of Sayles & Bassett, who accounted to Bassett & Bassett for the rent and use thereof.

The lower story of the building was occupied by Bassett & Bassett exclusively as a banking house, and was so occupied until May 25, 1885, when Jefferson Bassett died; but it is now unoccupied, except by the law firm of Sayles & Bassett and B. H. Bassett, who, with the consent of M. J. Bassett, still use the vault and safe for the safe-keeping of their books of account and papers, and they so used the same during the life-time of Jefferson Bassett. The lot and building, improvements and fixtures, are of the estimated value of $6,000, and were owned by the firm of Bassett & Bassett, and were held and treated by them as firm assets and as part of the capital stock of the bank. On May 25, 1885, Jefferson Bassett, was the head of a family, which consisted of himself, his wife M. J. Bassett, and their children, Ida, Virginia, Eleanor and Gilmer Bassett; and he owned, in his individual right, and occupied with his family, as a residence and homestead, a lot in the city of Brenham, which was the community property of himself and wife, and that lot is still used and occupied as a homestead by his family.

On May 25, 1885, and on May 28, 1885, B. H. Bassett was also the head of a family, and owned, in his individual right, a farm in the country, about three miles from the city of Brenham, and entirely outside of the corporate limits of the city, comprising about two hundred and thirty acres of land, upon which he then resided and now resides, and for a long time prior thereto had resided, coming into the city daily to his office in the practice of his profession. He had for a long time occupied and used the land as a place of residence and a homestead, occupying the dwelling house thereon, and cultivating and enjoying the fruits of the land.

On may 28, 1885, B. H. Bassett, for himself and the firm of Bassett & Bassett, made an assignment, in accordance with the statute, of all the property of himself and of the firm of Bassett & Bassett, except such as is exempt by law from forced sale, to appellants for the benefit of such of the creditors of himself and firm as would consent to accept their proportionate share of the property of B. H. Bassett and the firm of Bassett & Bassett, and discharge B. H. Bassett from their respective claims.

Appellants accepted the trust and qualified as required by law.

B. H. Bassett omitted from the schedule of assets filed by him two hundred acres of his homestead tract, and included therein the excess. He also withheld the bank building, lot and fixtures, and refused to yield possession thereof to the assignees. B. H. Bassett and M. J. Bassett claim the bank building as a part of their respective homesteads. B. H. Bassett claims for himself, as exempt from that assignment by reason of its being a part of his homestead, or his place of business, and by reason of its having been such on the day of his assignment, May 28, 1885, an undivided interest of one-half in the bank building; and M. J. Bassett claims for herself and her children, by reason of its having been, as his place of business, a part of the homestead of Jefferson Bassett on May 25, 1885, the day of his death, an undivided one-half interest in the bank building, all of which was stated by B. H. Bassett, in the deed of assignment, as a reason for withholding the same from his schedule of assets.

At the death of Jefferson Bassett, both B. H. Bassett and the firm of Bassett & Bassett were insolvent. At the time of filing plaintiffs' petition there had been no administration on the estate of Jefferson Bassett, but he left a will in which M. J. Bassett was made sole devisee and legatee, and is named executrix. By the terms of the will, the administration of the estate is withdrawn from the courts, and the executrix is authorized to act without bond.

Plaintiffs claim, that, by reason of the deed of assignment and their acceptance and qualification, they became invested with the legal title to the lot and building, as well as the other property of Bassett & Bassett and of B. H. Bassett, in trust for the benefit of accepting creditors, to be administered under the statute, and are entitled to the possession of the premises, and to have their title quieted; that they are deprived of the rents of the premises by reason of their being out of possession thereof, and their title is clouded by the claim of the defendants, so that the property cannot be sold to advantage. They pray judgment for the possession of the premises, and that their title be quieted, etc.

The defendants demurred to the petition, and on October 22, 1885, judgment was rendered in their favor, sustaining the demurrer and dismissing the suit. From that judgment the plaintiffs have prosecuted this appeal.

J. D. Swearingen and Garrett, Searcy & Bryan, for appellants, that the partnership property of Bassett & Bassett formed a primary fund for the payment of the debts of the firm, and none of it would be exempt to either member, or to the family of either member, until such debts were paid, cited: Pond v. Kimball, 101 Mass. 105;Kingsley v. Kingsley, 39 Cal. 665; Russell v. Lennor, 39 Wis. 670; The State v. Spencer, 64 Mo. 355;Gaylor v. Imhoff, 26 Ohio St. 317; Thompson's Homesteads and Exemptions, sec. 196, and authorities cited; Note to State v. Spencer, supra, in 27 Am. Rep. 246; Note to Wolf v. Fleischacker, 63 Am. Dec. 122.

That as surviving partner of the firm of Bassett & Bassett, B. H. Bassett could assign the property, both real and personal, belonging to that firm, for the benefit of the creditors thereof, and that the title to the lot and premises passed to appellants by virtue of the assignment, they cited: Graves v. Hall, 32 Tex. 665; 5 Wait's Acts. and Def. 143.

Sayles & Bassett, for appellee, that the property was exempt and did not pass by the deed of assignment, cited: Const. art. 16, secs. 50, 51; R. S., 542; Wheatley v. Griffin, 60 Tex. 209; Inge v. Crain, 5 Tex. Law Rev. for Dec. 1, 1885, pp. 539, 541, 542; Story on Part., sec. 94; Parsons on Part., 373, 376, 377, and notes.

ROBERTSON, ASSOCIATE JUSTICE.

Every constitution of the state of Texas has provided for the exemption of a rural homestead of not more than two hundred acres of...