Insurance Association v. Jameson

25 S.W. 307, 6 Tex. Civ. App. 282, 1894 Tex. App. LEXIS 436

• Court: Court of Appeals of Texas
• Decided: February 8, 1894
• Docket: No. 435.
• Status: Published

Opinion

WILLIAMS, Associate Justice.

J. W. Morgan took out a policy of insurance with the New Orleans Insurance Association upon his gin house, situated upon his homestead, and the fixtures therein, consisting of grist mill, gin stand, and other articles usually found in gin houses. A fire occurred, in which all of- the property was destroyed, and after the loss had been adjusted between the company and Morgan, appellee, a creditor of the latter, garnished the company. The garnishee answered, stating its indebtedness to Morgan and the occasion thereof; and Morgan intervened, claiming that the money due him was exempt. Judgment was rendered in the County Court, holding the money subject to garnishment, from which this appeal comes up.

Delivered February 8, 1894.

It is settled that the proceeds of an insurance policy upon the homestead which has been destroyed by fire, is exempt, at least for a reasonable time, to enable the owner to invest it in another home. Cameron v. Fay, 55 Texas, 58.

But it is urged that this rule applies only to property which is specifically exempt, and does not protect articles which are not in themselves exempted, but become so only by being attached to exempt realty, after they have been detached. This proposition may be true, but does not, in our opinion, control this case. Here the attachments and fixtures of the gin house were never detached, but were destroyed along with it. The homestead was an entirety, consisting of the land, houses, and fixtures upon it. Those things which were so attached as to become part of the realty or acquire the character of permanent fixtures were as much a part of the homestead as was the house or the soil. While they possessed this character, the articles in question were destroyed. They were not chattels, but were realty. It was therefore the proceeds of the homestead which was in controversy, and it was exempt by law from garnishment.

The case of Cullers & Henry v. James, 66 Texas, 498, is not in point. The machinery there was held not to be attached to the land, because the land did not belong to the owner of the machinery. It was conceded in the opinion that property attached to the land which was owned by the party claiming the exemption, and which formed his homestead, would be a part of the realty, and as such exempt.

The facts in regard to the property here in question are not very fully drawn out in the evidence, but we think it appears, prima facie at least, that it was so attached and used in connection with the gin house as to constitute a part thereof.

It appears that $48 of the insurance money was for cotton destroyed.

The case was not tried below upon the question whether or not that was subject to garnishment, and we do not think it proper for us to decide whether or not it was.

The judgment will be reversed and the cause remanded.

Reversed and remanded.