Case No. 5277 | Tex. | Jul 1, 1885
The first assignment of error cannot be maintained. It was perfectly competent for the defendant to show that, before purchasing, he had taken the advice of counsel as to the validity of the title which he was about to purchase.
Appellants appear to admit that, if David Ballow had sold to appellee on the day of the assignment, he would have conveyed a good title. This assumes that the property is to be regarded as the homestead of David Ballow, and not subject to execution, at the time when he ceased to do business. The circumstances relied on as an abandonment are these: He suffered eight days to elapse between the cessation of his business and the day of the conveyance, and during this time he made no use of the house. They appear to put the case thus: As the exemption arises from the use of the property as a place of business, the exemption is lost at the moment, or at least on the day, that the business ceases.
We cannot accept this view of the case. The exemption was certainly intended as a substantial benefit, and is not to be lost in this summary way: The owner may fail in business, but he is not limited to any one occupation. A reasonable time, therefore, ought to be allowed him to adapt himself to his changed condition, and the property will not be subject to execution unless it is clear that there has been an abandonment. The case of Shryock v. Latimer, 57 Tex., 674" court="Tex." date_filed="1882-10-27" href="https://app.midpage.ai/document/shryock--rowland-v-latimer-4893866?utm_source=webapp" opinion_id="4893866">57 Tex., 674, is in point. In that case Latimer ceased to use the property as a place of business about the close of the year 1876. He rented it out in September, 1877, and it was sold under execution on February 12, 1878.
Of course we do not mean to say, or even to suggest, what time ought to be allowed in such cases. Each case must depend on its own circumstances, and the question of abandonment is a question-of fact to be determined by the court or jury, as the case may be.
In the case before us, the assignment was made on the 14th and the conveyance on the 23d of the month. But as a matter of fact, the agreement to sell was made several days before, but was prevented for the time being. It also appears that at the time of the assignment and for some days afterwards, David Ballow expected to commence a new business, but found himself unable to do so. The evidence is entirely consistent with the good faith of the parties to the sale. But appellants point out, as a proof of fraud, that appellee purchased the property with full knowledge that the creditors of the vendor were about to attach it for his debts. This, we think, does not alter the case. If the property was the homestead of
The court below, sitting as a jury, having found in favor of the validity of the conveyance, we think the judgment should be affirmed.
Affirmed.
[Opinion adopted May 12, 1885.]