125 S.W. 374 | Tex. App. | 1910
Appellees in their suit for debt caused to be levied a writ of attachment against the eighty acres of land in controversy in this appeal, and prayed for the foreclosure of the attachment lien and the sale of the land thereunder in satisfaction of their debt. Appellant by his answer claimed that the eighty acres so attached was his homestead and as such exempt from forced sale. The trial was before the court without a jury. The court filed his findings of fact, which are fully supported by the record and are not challenged by the parties to this suit. The court made the findings that the eighty acres of land on which the attachment writ was levied was at the time of the levy and trial the homestead of appellant, and that he was in the use and occupancy of the same, and entitled to the use and occupancy of the same, as a homestead; that the land was acquired as and constituted the homestead of appellant and his wife, and that after the death of his wife, which occurred *90 previous to the issuance of the attachment lien, the appellant continued to remain on and use and occupy the premises as a homestead the same as during his wife's lifetime, and has never abandoned his use and occupancy of the same as a homestead. The appellant and his wife, as the court finds, had no children, and after the death of his wife appellant continued to remain upon the homestead alone. The debt sued on was not for the purchase money for the premises, nor for work and material used in constructing improvements on the premises. The court concluded as a matter of law that though the premises were the homestead of appellant and he was entitled to the use and occupancy of the same as a homestead, yet as appellant was not the head of a family a lien could be created by attachment against the premises subject to the use and occupancy of same by appellant. The judgment entered in the case was that the attachment lien be foreclosed against the premises subject to the homestead right of appellant therein, and that no process to sell the premises issue as long as appellant continues to use and occupy the same as a homestead, and that process to sell same may issue when the "homestead rights of defendant cease to exist."
The specifications of error, by proper assignments, challenge the ruling of the court upon the ground that the premises, being the homestead of appellant, were exempt and protected from forced sale, and were not subject to attachment liens. The contention of appellant must be sustained. It is a well settled law of this State that when a homestead has once been acquired, as in the instant case, the subsequent death of either the husband or wife does not subject the homestead to forced sale under a judgment for ordinary debt, as in this case, the survivor still occupying and continuing it as a homestead. Blum v. Gaines,
The levy of an attachment writ is a step in the course of securing a forced sale, and does not create a lien which might be enforced against the homestead. Willis v. Mike,
Appellees cite the case of Harle v. Richards,
The judgment of the District Court, in so far as it decrees foreclosure of the attachment lien on the eighty acres in controversy in this case, is reversed and here rendered in favor of appellant with all costs, and the remaining portion of the judgment of the court is affirmed.
The judgment was ordered reversed and rendered in part, and affirmed in part.
Reversed and rendered in part.
Writ of error refused.