John Mackey v. W. H. Wallace, 26 Tex. 526

Wheeler, C. J. It appears to have been held in some of the States, on statutes similar to our own, that the lien created by a judgment does not attach to land purchased by the judgment debtor after the date of the judgment. (Calhoun v. Snider, 6 Binn, 135; 25 Miss., 484; 1 Green, Iowa R., 275.) But it is unnecessary to decide that question in the present case. If it be conceded that Mackey’s judgment was a lien on the land, his petition shows no sufficient ground for asking the interposition of the equity powers of the court in- his behalf.

If, indeed, such a proceeding as the present can be maintained by a creditor to Subject the excess of land in a homestead tract in any case, which is doubtful, it must be where the creditor cannot obtain satisfaction of his judgment in the ordinary way; and it must be in subordination to the right of the debtor to point out property and to possess the homestead of his own selection. It is not averred that the debtor has not other property liable to be taken in execution in satisfaction of the debt. It may be that he has, though executions have been returned milla bona.

The averment of such returns is not an allegation that the creditor has not property subject to execution. The returns might be good evidence in supnort -of such an allegation. It was incumbent on the creditor to negative, by averment, the existence of property before he could invoke the equitable powers of the court in an extraordinary proceeding of this nature. It would seem, moreover, that it is the right of the debtor to designate the land included in his homestead exemption, subject only to the qualification that it must include his improvements.

At all events, he has the right to point out property to satisfy the creditor’s execution; and it is not perceived that any olie could question his right to point out the excess of land in the homestead tract by designated boundaries, subject to the qualification just mentioned. If he could dispose of it at private sale, and reserve such portion as a homestead as he saw proper, no reasdn is perceived why he should not have the right to point it out to the agent appointed by the law to sell it for him.

It does not appear that any opportunity had been afforded him to point out this excess f and in this respect, also, we think the petition is insufficient. We are of opinion that there is no error in the judgment, and it is affirmed. Judgment affirmed.