J. N. Whittenberg v. J. W. Lloyd, 49 Tex. 633

Gould, Associate Justice. Lloyd sued Whittenberg for a balance due on a promissory note, and afterwards, by amended petition, sued out an attachment, which was levied on two lots in the town of Waxahachie. Whittenberg moved to quash the attachment, one of the grounds being that the wrikwas not issued by the clerk in the manner prescribed by law.

This motion was sustained, but, on the next day, the court, on motion of plaintiff, set aside the order sustaining it and quashing the attachment, and allowed the clerk to amend the writ of attachment by affixing thereto his official seal; also, to correct the date of the file-mark on the» amended petition,—to which last orders defendant excepted. The defendant filed various pleas by way of defense and in reconvention; but the only defense necessary to be noticed is, that the lots levied on were exempt from forced sale under the homestead exemption.

The cause was submitted to the court without a jury, and judgment was rendered for plaintiff for the balance due on the note, and for the enforcement of the lien on the property attached. Whittenberg appeals, and the errors assigned are, that the court allowed the writ of attachment to be amended, and that the judgment is erroneous, under the law and facts of the case. Other questions are discussed in the briefs of counsel on both sides, but it is not proposed to follow them outside of the errors assigned.

It was not error to allow the writ of attachment to be amended by the clerk affixing his seal thereto, even after the motion to quash the writ had been sustained. (Porter v. Miller, 7 Tex., 482; May v. Ferrill, 22 Tex., 344; Cartwright v. Chabert, 3 Tex., 261; Drake on Attach., sec. 212.) Appellant’s claim, that the attached lots were exempt, comes up properly under the second and third assignments of error, and presents a question not free of difficulty.

For many years he had owned and occupied a homestead in Waxahachie, but, on account of his wife’s health, determined to remove to Tarrant county, and bargained verbally for a place there, expecting to pay for it out of the proceeds of his homestead, when sold, and so informing his vendor.

He testifies that he found himself unable to sell his homestead, because of its value, and that for the purpose of effecting a sale, and being advised that he would not thereby lose his homestead rights in the proceeds, he exchanged it for the property attached, a place of less value, but more salable, receiving some ready money in exchange. At the time of the exchange, defendant below had removed from his homestead ; but whilst he testifies that he claimed the place received in exchange as a. homestead, he never occupied it, nor does he testify that he ever intended to occupy it.

His intention was to sell it, and use the proceeds in paying for the place in Tarrant, bargained for and since occupied, and in part paid for; but he states that he is unable to complete the payment, and until he does can get no title. The claim to exemption is mainly urged on the ground that the exchange was made for the purpose of selling the property received in exchange, and applying the proceeds to the payment for the homestead bargained for in Tarrant county; and it is insisted that the proceeds of the sale of a homestead remain exempt, if the intention be to invest them in the purchase of another.

It is argued, and not without force, that the spirit and object of the homestead exemption require that the citizen be protected not only in exchanging one homestead for another, and in selling for cash and with the money buying another, but also in selling on a credit, or for un exempt property, with the purpose of using the proceeds to pay for another homestead; and certainly it would have been in the power of Whittenberg, who had, before he parted with his old homestead, bargained for another, to have secured to his vendor so much of the proceeds as was needed to complete the payment for the new homestead; but to the broad claim that the proceeds of the sale or exchange of a homestead shall be exempt, the answer is, that neither in the Constitution nor in any statute is provision made for such a case, and that if such an extension of the exemption be needed, it should come in the shape of additional legislation.

Where exempt property has been taken from the owner against his will, and its form changed by process of law, (as in case of a homestead exceeding in value the amount allowed,) the proceeds are protected until there is reasonable opportunity to reinvest in other exempt property. (Keyes v. Rines, 37 Vt., 260; Mitchell v. Millhoan, 11 Kan., 628; North v. Shearn, 15 Tex., 175; Paschal v. Cushman, 26 Tex., 75.) So, aliso, “insurance-money due on the destruction of the homestead by fire ” has been held to he protected. (Houghton v.

Lee, 50 Cal., 101; Smythe on Homestead, sec. 102.) On the other hand, it is held, that where exempt property has been voluntarily sold or exchanged, the proceeds are not exempt. (Edson v. Trask, 22 Vt, 18 ; Scott v. Brigham, 27 Vt., 561; Friedlander v. Mahoney, 31 Iowa, 315; Smythe on Homestead, secs. 99, 556.) In Alabama, a different rule prevails; but it is .by force of a statute. (Cook v.

Baine, 37 Ala., 350.) The case before us may be one of some hardship, but that is no sufficient reason for a departure from the rule sanctioned by authority, especially when the effect would be to leave the subject of homestead exemptions in a state of uncertainty well calculated to make it even more prolific in litigation than it now is. The evidence failed to show that the property attached was ever the homestead of appellant, or that it was in any way exempt from the attachment. The judgment is affirmed. Affirmed.