Anderson v. McKay, 30 Tex. 186

Anderson v. McKay

30 Tex. 186 | Tex. | 1867

Willie, J.

The defendant in error obtained a judgment in the district court of Panola county against William P. Anderson, the plaintiff in error, for the sum of $112 80. An execution issued thereon, and the sheriff of said county levied it upon a lot of lumber belonging to said Anderson, and a writ of injunction was sued out to restrain the'sheriff from proceeding to sell the same. The material allegations of the petition for injunction were, that the petitioner was a married man, and was with his family living in a rented house in the town of Carthage, in said county; that he had bought two lots in said town, and that these lots were, be*189fore and. at the time of the levy, destined by petitioner as a homestead for himself and family, and that he had ever since destined them to that use; that these lots were not worth more than $500; that the whole of the lumber levied on was, previous to said levy, procured by him for the special purpose of building a dwelling-house upon said lots; that he still intended to use said lots as a homestead, and as such he selected the lots and the lumber, and has never at any time abandoned this intention; that said lumber is .suitable for the purpose of building a dwelling-house; and that he has not, nor did he have at the time of said levy, any materials of that kind with which to build a house without the aid of said lumber, and, if deprived of it, he will be left without a house.

To this petition a general demurrer was sustained in the court below. The injunction was dissolved, and judgment was entered up against Anderson and his sureties for the amount of the execution and the costs of this suit. The plaintiff in error excepted, and brings the judgment to this court for revision.

The statute of 2d February, 1860, enacts, “ That the homestead in a town or city exempt from forced sale is hereby declared to be the lot or lots occupied or destined as a family residence, not to exceed in value $2,000 at the time of their destination as a homestead, nor shall the subsequent increase in value of the homestead, by reason of improvements or otherwise, subject 'the homestead to forced sale.” [Paschal’s Dig., Art. 3928.]

It is contended by the plaintiff in error that the law, having exempted from forced sale the town or city lots occupied or destined for a homstead, also exempts everything necessary for their beneficial enjoyment. That in case the lots are vacant, lumber for the purpose of building a dwelling-house, &c., upon them is necessary to their beneficial enjoyment; and that as the exemption as to the lots begins from the time they are destined for a family resi*190denee, it must begin also as to the lumber from the time it is destined for such building purposes. It was said in Cobb v. Coleman, 14 Tex., 594, that the exemption of a horse from execution included also a saddle, bridle, &c., because they are necessary for the beneficial enjoyment of the horse. We may admit that the same rule applies to the homestead, and that personal property intended for its improvement is exempt from forced sale; and yet the allegations in the present petition would not be sufficient to entitle the plaintiff to the relief he seeks. He does not set forth the time, when the lumber was purchased, nor when it was set apart to be used in building upon the premises. It does not state even the time when the lots themselves were first destined for the future residence of plaintiff and his family. It does not show that he had ever taken any other steps towards building upon the lots except to purchase this lumber, or that he would have taken such steps but for the interference of the sheriff. For aught that appears from the petition it may have been purchased many years previous to the levy, and have been permitted to lie idle and unused, the owner intending at some future and undetermined day to build him a house therewith. It certainly is not sufficient that a party has purchased a lot of lumber at some time in the past, which he intends at some day in the future to use in building him a home. If so, the mere mental reservation of such property for use upon the homestead would enable the owner to protect at different times thousands of dollars’ worth of it from being taken in payment of his just debts. The intention thus to appropriate the property shall not only be found within the mind of the party, but it should be evidenced by some unmistakable acts, showing an intention to carry the design into effect; or some sufficient reason should be given why this intention of the party was not demonstrated by such acts. Such vague, general, and indefinite allegations as are contained in this petition were entirely insufficient to entitle *191the plaintiff to the relief he sought, and. the court did not err in sustaining a demurrer thereto.

The judgment is

Affirmed.