255 S.W. 241 | Tex. App. | 1923
On January 11, 1922, appellee filed his amended original petition, wherein he alleged that the property attached, describing the same, was subject to his landlord's lien, and prayed that the same be foreclosed, and also that his attachment lien thereon be foreclosed. The court found that appellant was indebted to appellee in the sum of $236.77 for rents and advances, that the crops levied upon were grown upon the land rented by appellee to appellant, and that the other property was advanced by appellee to appellant to enable him to make a crop upon said land during the year 1921. The court further found that the rented premises were the homestead of appellant during the entire year of 1921, and that all of the property *242 levied upon was exempt from execution, and was of the value of $134.32. These findings of fact are sustained by the evidence.
The court rendered judgment for appellee for his debt and costs, except the expense of gathering said crops, and for foreclosure of the landlord's lien, and also for the foreclosure of the attachment lien. The property being exempt from execution, was not subject to attachment, and it was error to foreclose the attachment lien. But this error was immaterial, inasmuch as the judgment ordered the property sold to foreclose the landlord's lien, and it could work no injury to appellant, if it was also sold at the same time, by the same officer, under the same judgment, foreclosing the attachment lien.
A tenant, residing with his family upon rented land, has a homestead right therein. McCullough v. Call (Tex.Civ.App.)
Ungathered crops, growing upon a homestead, are not subject to attachment. Pate v. Vardeman (Tex.Civ.App.)
Appellant contends that the appellee, by levying the attachment upon the property on which he had a landlord's lien, thereby waived such lien. It was not without difficulty that we arrived at a decision on this point adverse to appellant's contention. It is stated in 24 Cyc. 1248, that a landlord waives his lien by levying an attachment upon property subject to such lien. The only case there cited in support of this proposition is Potter v. Greenleaf,
No such right exists under the laws of this state. Here a mortgage, though in form a conveyance, conveys no title, but is only a security for debt. Here the levying of an attachment on mortgaged property, and thereby surrendering possession to the officer of the law, would not be to abandon his right of possession, as was held in the cases cited, for he would have no such right of possession. As was said in Byram v. Stout,
In the instant case, had appellee sued out a distress warrant, instead of an attachment, there could be no question as to the correctness of the judgment foreclosing his landlord's lien. The landlord's lien is given by law, and does not depend upon the issuance and levy of a distress warrant. Brown v. Collins,
We overrule appellant's contention that the hogs were not subject to the landlord's lien. The court found that they were furnished by appellee to be used in planting and gathering the crops, by which the court meant to be used by appellant as food for himself and family while making the crop. They had not been so used when levied upon *243 under the writ of attachment, which was September 8th. The evidence shows that hog-killing time in that county is usually in November or December.
For the reasons stated, the Judgment of the trial court is affirmed.
Affirmed.