C. P. Alexander v. J. A. Lovitt et al., 95 Tex. 661

WILLIAMS, Associate Justice. in error, on the 28th. day of February, 1898, caused a writ of attachment against defendant in. error to be levied on a house and lot in Temple. Defendant in error,, in the litigation that followed, sought to have the property freed from the attachment on the ground that on the date of the levy it was his. business homestead. The facts developed, so far as it is necessary to state-them, are, that Lovitt, prior to the early part of 1897, had been a retail lumber dealer, using the property in question as his place of business.

At that time, because of some losses he had sustained, he sold out the-business to Caruthers & Campbell, conveying to them his stock and good will. At the same time he leased to them the entire premises, including-all his office fixtures, for the term of three years, or, at their option, for five years.

By the contract he agreed that for the term of three years, or for five years in case the lessees should keep the property for the latter-period, he would not engage in the sale of lumber and other specified articles or material commonly bought and sold by lumber dealers; reserving, however, the right to sell such lumber and material to lumber-dealers at wholesale only, but agreeing not to keep any of such material, for sale or trade in Temple, except in accordance with the' exception- He retained a safe which he had used in his business, but removed it to and kept it in an office belonging to other persons, for about three months.

All of the property sold and leased was delivered to Caruthers & Campbell. Lovitt then commenced to wind up his business affairs by collecting debts due him, taking notes, etc., and paying claims against him.

He kept his books of accounts, policies of insurance and papers in the safe, which, after about three months, by permission of the lessees, he again placed in the room which had constituted his office, stating to them that the place was his business homestead, and that he wanted to keep the safe there "to strengthen his business homestead.” He kept in his .pocket a small book containing a list- of his debtors, with the amounts owed by each, and transacted the business stated principally on the streets, but went from time to time to the safe to get or deposit a paper, or consult his books.

He had no control over any part of the building, and no key to it, but entered, when he did so, by permission of the lessees. This was the situation when the levy was made. Within a few months after the levy, Lovitt entered the service of a lumber dealer at Beaumont, as traveling agent, which lasted until December, 1898, when he took charge of a lumber yard at Yoakum. He remained there until March, 1900, since which time he has sold lumber on commission for different persons, partly in Temple and partly elsewhere.

At the end of the three years lease, the lessees surrendered the property to Lovitt, and he has kept his papers and conducted his correspondence in the office. In his testimony, Lovitt does not claim that between the time of the sale and lease to Caruthers & Campbell and the levy, he was carrying-on any business upon the property in controversy.

The claim made by him and sustained in the District Court and Court of Civil Appeals is that the exemption was saved by his intention, existing continuously from the time of the sale and lease to the present, to resume his business as lumber dealer on the property, when he should be able to do so, and after the expiration of the lease. The case of Houston v. Hewsome, 82 Texas, 77, 78, 80, is authority for the proposition that the keeping of the safe in the building, and the other facts stated in connection with it did not themselves make the property the place of business.

In view of the definite suspension of the business in .which Lovitt had been engaged, and the execution of a contract which made it impossible for him to resume it upon these premises within any reasonable, time, his intention to resume at some indefinite time in the future can not be held to continue the exemption. There was a definite cessation both of the business and of the use of the property, by a transaction which put it out of Lovitts power to resume for three years at least, and in the power of the lessees to. prevent such resumption for five years.

The mere intention to again engage in ihe business could not supply the place of an existing business, and the use of the property in its exercise, both of which were essential to the exemption Shryock v. Latimer, 57 Texas, 674; Pfeiffer v. McNatt, 74 Texas, 640; Wynne v. Hudson, 66 Texas, 1; Harle v. Richards, 78 Texas, 80; Duncan v. Alexander, 83 Texas, 445.

This was not merely such a suspension of the business and of the use of the property for a reasonable time, in order to change from one business to another or arrange for a resumption, as this court has held is consistent with the continuance of the exemption where the intention to resume exists. Bowman v. Watson, 66 Texas, 295; Gassoway v. White, 70 Texas, 475; Hargadene v. Whitfield, 71 Texas, 482; Malone v. Kornrumpf, 84 Texas, 454. Mor was the renting merely temporary, in the sense of the Constitution.

It and the sale completely displaced the existing business and use of the house, and precluded a resumption within reasonable time. The decision in the case of Shryock v. Latimer has never been overruled, nor the principles there stated modified, and it controls this case. The facts, taken at their strongest in favor of the defendant in error, conclusively defeat the exemption claimed. The judgment will therefore be reversed and judgment will be here rendered for plaintiff in error. Reversed and rendered.