Bomback v. Sykes

24 Tex. 217

• Court: Texas Supreme Court
• Decided: July 1, 1859
• Status: Published

Opinion

Wheeler, C. J.

It is averred in the petition, and is not denied in the answer, that the property embraced in the deed of trust, is the homestead of the appellants. Though there is no statement of facts, there is no averment in the pleadings, under which evidence could have been admitted, that it was not the homestead. It must, therefore, be deemed, from the allegations of the parties, to have been the homestead; and, as such, it is exempt from forced sale. (Const., Art. 7, § 22; Sampson v. Williamson, 6 Texas Rep. 102.)

The court, therefore, erred in adjudging a sale of the property by the sheriff, under compulsory process from the court. The proper judgment would have been a dissolution of the injunction, thereby enabling the trustee to proceed to sell, in accordance with the power contained in the deed; and this would have been consistent with the prayer of the defendants. The judgment must be reversed, and the cause remanded for further proceedings.

Reversed and remanded.