Low v. Tandy

Walker, Associate Justice. The use by Tandy of the lot upon which the gin and mill buildings were erected, for the exercise of his business and calling, made the premises a homestead under the law. His residence upon leased property could not affect the right to exemption for his place of business given by the Constitution and laws of the State. (57 Texas, 377.) The judgment on the note against Tandy and his sureties, without foreclosure of the mortgage upon property encumbered with the note, only authorized execution against property not exempt—that is, property not liable to forced sale. The mortgage upon the property seized not being enforced did not affect the question of. liability of the property to levy and sale. (25 Texas, 397; 25 Texas Supp., 316; 43 Texas, 146; 46 Texas, 315.) [749] The cotton gin and other machinery seem to have been placed in buildings upon the lot, and to have been attached as fixtures-to the realty. While the mortgagor of personal property has-a restricted control of it, he can riot sell or remove it; still, subject to foreclosure either by sale by trustee or by judicial order, the mortgagor can so use it as to make it exempt from seizure and sale by any other creditor or in any other mode than by foreclosure. Opinion delivered May 25, 1888. The court then did not err in sustaining exception to that part of the answer setting up the mortgage by Tandy to secure the note upon which the judgment had been rendered as a defense to the seizure without foreclosure of property exempt from execution, nor for excluding the mortgage when offered in evidence. As to exclusion of secondary evidence of the contract of purchase of machinery, the record does not show sufficient effort to secure the original. Low & Low, as agents had sold the gin to Tandy, and had indorsed his notes for the property and forwarded them to parties at Dallas, who subsequently failed in business, and did not return the contract-when written to for it. Nor does it appear that the parties were its proper custodians. But the testimony is not material to the issues upon which it is evident the case wasdecided. The assignment “The court erred in its charge to the jury”' is too general to require attention. The verdict as to the use made by Tandy of the lot, and the manner of use of the machinery as fixtures, is sufficiently sustained by the testimony. The verdict, however, is excessive, and the remittitur in excess of the testimony is allowed. Judgment below is reversed and here rendered for four hundred and seventy-nine dollars and twenty-eight cents. Beversed and rendered.