Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Tyler term, 1885, and the Galveston term, 1886. Volume 65. Page: 81
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1885.] INGE AND BORING V. CAIN 81
Opinion of the court.
ing on his business in the house and on the lot in controversy. The
deed of assignment in terms conveys the storehouse to the assignee.
This can make no difference. If it had ceased to be a part of his
homestead, it passed without mention; if it remained a part of the
homestead, as the wife did not join, it did not pass, though mentioned.
The-husband, without the concurrence of the wife, may divest his
place of business of the homestead protection by abandonment, and
then himself convey it. The court below held that the abandonment
was accomplished by Kennard's insolvency, and by the deed of
assignment conveying the homestead. An insolvent merchant may
continue in business, and if he ceases and assigns, conveying his place
of business to his assignee is not more conclusive evidence of his
purpose not again to use it than conveying it to any other person.
It appears that the cessation of his business and the execution of the
deed of assignment were simultaneous acts. The only evidence that
he had abandoned his business place as a part of his homestead before
he assigned was that he was insolvent. This was manifestly insufficient.
He may have intended to abandon, but he had not abandoned,
the homestead right in the house and lot in controversy, and his
conveyance of it without the concurrence of his wife in legal form
was therefore inoperative. We think the case of Miller v. Menke, 56
Tex., 559, is decisive of this.
The appellee, the plaintiff in the court below, was not entitled to
recover, because he showed no title. The assignee, Boring, who was
intervenor in the court below, was not entitled to recover, because his
prima facie case was rebutted by proof of the homestead character of
the property at the date of his deed. If Inge had no title, the result
would necessarily be the same, and would remain unchanged, regardless
of the decisions of other questions raised.
The case was tried below without a jury, and the only evidence
excluded was that offered in behalf of appellant Inge. We therefore
reverse the judgment and render here the judgment which
should have been rendered in the court below, that the plaintiff and
the intervenor in the court below take nothing by their suit, and the
defendant go hence without day, and recover of the plaintiff all costs
except those caused by the intervenor, and of him,those so caused.
REVERSED AND RENDERED.
[Opinion delivered November 27, 1885.]
VOL. LXV-6
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Tyler term, 1885, and the Galveston term, 1886. Volume 65., book, 1886; St. Louis, Mo.. (https://texashistory.unt.edu/ark:/67531/metapth28509/m1/97/: accessed April 25, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .