Cases argued and decided in the Supreme Court of the State of Texas, during the Austin term, 1885, and the early portion of the Tyler term, 1885. Volume 64. Page: 61
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1885.] BEARD v. BLUM. 61
Opinion of the court.
Donald to Booth. When McDonald conveyed to Booth he was
financially embarrassed.
The evidence showed that McDonald was a widower, the head of
a family, consisting of himself and minor children that he occupied
the premises as his homestead until after the appellee had purchased
the property and this suit was brought. One of the findings
of the court was that it was his homestead, but that he had abandoned
it. The only evidence of such abandonment was his declaration
to Booth, when he sold him the property, that he claimed or
was going to claim his homestead. on another tract of land owned
by him.
Judgment was rendered for appellee, who claimed under the execution
sale.
Richard B. Semnple, for appellant, cited: Harrison v. Boring, 44
Tex., 256; Hodges v. Taylor, 57 Tex., 199; Fowler v. Stoneum, 11
Tex., 478; Shepherd v. Cassiday, 20 Tex., 24; Cox v. Shropshire,
25 Tex., 113; 51 Tex., 457; Allen v. Stephanes, 18 Tex., 672.
V. WV. lale and Taylor & Galloway, for appellee, cited: Cox v.
Shropshire, 25 Tex., 113; Bump on Fraud. Con., 246, 325.
Scott & Zevi, also for appellee, filed a written argument on motion
for rehearing. The motion was overruled.
STAYTON, ASSOCIATE JUSTICu.- It is admitted that the property in
controversy belonged to McDonald on November 9, 1878; and it
cannot be denied that it was then, and continued to be, his homestead
until after the purchase of the property by Blum under the
judgment rendered in the attachment suit in favor of L. & H. Blum
on March 29, 1882, if the conveyance made by McDonald to Booth
was upon secret trust that the latter would hold the property for
the former; for the homestead right would attach, or rather contipue
in McIDonald, if such was the character of the holding of
Booth under the deed made to him by McDonald on November 9,
1878.
The evidence shows very clearly that under that deed Booth held
the property in trust for McDonald, and it is upon this theory alone
that there can be any pretense that McDonald had any interest,
whatever, in the property at the time the writ of attachment in
favor of L. & HI. Blum was levied upon it.
If it was the intention of McDonald and Booth that the title to the
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of the State of Texas, during the Austin term, 1885, and the early portion of the Tyler term, 1885. Volume 64., book, 1886; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth28510/m1/85/: accessed April 24, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .