259 S.W. 561 | Tex. Comm'n App. | 1924
In the year 1911, W. R. Clement and his wife, Mae N. Clement, established their homestead on a lot of land in the city of Paris, Tex., fronting 48 feet on Main street, which was the property of W. R. Clement. At the time said property was designated as a homestead, it was of the value of $8,400, exclusive of the improvements. On May 25, 1917, W. R.- Clement, by deed of gift, conveyed to his wife a portion of said lot off the south, fronting 27 feet on Main street, and running back 108 feet. The balance of 21 feet by 75 remained in the name of W. R. Clement. At the date of the deed of gift W. R. Clement was indebted to the First National Bank of Paris in the sum of $300, and owned no property other than the homestead. Afterwards he borrowed other amounts from the bank, prior to his death in' 1919. On February 2, 1921, the bank reduced its debt to judgment in the county court of Lamar county; the judgment amounting to $920, and being rendered against Mae N. Clement as the executrix of the estate of W. R. Clement. November 28, 1921, execution was issued on this judgment, and on November 29th was levied By the sheriff of Lamar county on the entire lot of land fronting 48 feet on Main street. It was advertised for sale on January 3, 1922, under said execution.
December 31, 1921, Mae N. Clement, in her own right and as executrix of the estate of
A hearing was had March 27,' 1922. The ' court found the facts as hereinbefore set out. The excess in value of the lot without the improvements was found to be $3,400, and this was apportioned by the court $1,470 to the north '21 feet and $1,890 to the south 27 feet. The temporary injunction was dissolved, and the sheriff was directed to proceed under the execution to sell the north portion of the lot fronting 21 feet on Main street and the proceeds thereof to the amount of $1,470 be applied to the satisfaction of the judgment. It was provided that if, from the sale of the north 21 feet, there was not realized' a sufficient amount to pay the judgment out of the excess, then the south 27 feet be sold and the proceeds to the amount of $1,890 be applied to the payment of any balance due on the judgment. Mrs. Clement prosecuted an appeal to the Court of Civil Appeals at Texarkana, and there the judgment of the trial court was affirmed. 245 g. W. 719. A writ of error was granted by the Supreme Court for the purpose of hearing the case. The parties will be designated as in the trial court.
There is but one question raised and presented that requires our attention. Being a question concerning the ’homestead provisions of our Constitution, we have given it careful consideration, although the manner in which it was raised and presented on the appeal is by no means in strict compliance with the rules.
We recommend that the judgment of the Court of Civil Appeals and the judgment of the district court be reversed, and the cause remanded, with instructions to the district court to enter judgment ordering sale of an undivided'interest of 77/87 of the property, that fhe proceeds from the sale of this interest be applied to the payment of defendant’s judgment, \yith interest, and the balance, if any, be paid to plaintiff, and that defendant pay all costs.
Judgments of the Court of Civil Appeals and district court both reversed, and judgment rendered, in accordance with the recommendation of the Commission of Appeals.
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