Broches v. Carroll

2 Posey 143, 1880 Tex. LEXIS 252

Opinion

Opinion.— The errors assigned and relied on by the appellant in this case are that the judgment and findings are contrary to the law and evidence and that a new trial should have been granted.

The assignments are certainly indefinite, but they were filed before the adoption of the present rules, and we think there is such manifest error in the record as requires a reversal of the judgment.

1. On the 13th day of November, 1871, when the attachment on the land was levied, C. C. Carroll was a single map, had never been married, never had a family, and never lived upon this land. He therefore had no homestead upon the land sued for, and was not entitled to claim a homestead exemption thereon. Howard v. Marshall, 48 Tex., 481.

2. Appellant’s title to the land dates back to the date of the levy of the attachment. His right to a judgment ordering the sale of the land which he recovered, and under which he purchased, was fixed by the seizure. He could not be divested of the right so acquired by any subsequent acts of Carroll and wife. It is unnecessary, therefore, to inquire whether they ever acquired a homestead upon the land, though we should have no hesitation in holding that under the proof they had acquired none at the time of appellant’s purchase of the land. Baird v. Trice, 51 Tex., 557.

The judgment will be reversed and rendered for appellant for the land.