American Nat. Bank of Ft. Worth v. Strong

188 S.W. 1014, 1916 Tex. App. LEXIS 969

• Court: Court of Appeals of Texas
• Decided: July 1, 1916
• Docket: No. 7739.
• Status: Published

Opinion

RAINEY, O. J.

This is an appeal from an order of the district judge of Van Zandt county, Tex., granting a temporary injunction restraining the sale of certain lands under execution. The petition shows that the ap-pellee, ' Strong, exchanged his homestead for the land; that within six months of said exchange the appellant bank caused au execution issued by virtue of a judgment against Strong and others to be levied on same, and the land was to be sold by virtue of such execution.

[1] The appellee’s affidavit to the petition was that the allegations were true to the “best of his knowledge and belief.” In addition to appellee’s affidavit were two affidavits' of other parties which stated that to their knowledge the land was exchanged for the homestead, and one of them states that no money was paid by appellee in the exchange. K-)

[2] The verification of a petition for the writ of injunction was to show that the grounds alleged therein are true. The affida: vit of appellee was defective in not stating positively the allegations were true, but we think the other affidavits annexed to the petition were sufficient to authorize the action of the judge in granting the writ.

[3] Appellant urges that the six months allowed for the disposition of the land has expired and the injunction should be dissolved. The levy of the execution was made within the six months after the exchange and is ineffectual, if the land was acquired in exchange for a homestead. Witt v. Teal, 167 S. W. 302. Therefore as to this injunction it will not be dissolved, but the action of the lower court will he affirmed.

Affirmed.