
    J. L. McArnis v. E. C. McIntyre and W. H. Kennedy.
    (No. —, Op. Book No. 1, p. 293.)
    Appeal from Delta County.
   Opinion by

Ector, P. J.

§ 513. Exempt property; lumber to build residence is exempt from forced sale. Appellant had purchased a Hact of unimproved land, which he designed to make his homestead. He owned no other land. He purchased lumber with which to erect upon said land a house to reside in. A portion of this lumber he had hauled to a place of safety near the land, and there left it until he could get the balance of his lumber from the mill. Appellee had an execution against appellant, which he caused to be levied upon the lumber which had been hauled and left near appellant’s land. Appellant brought this suit to enjoin the sale of the lumber, upon the ground that it was' a part of his homestead, and was therefore exempt property. Upon a hearing of the case, the temporary injunction which had previously been granted was dissolved, and it was adjudged that appellant take nothing by his suit, and pay the costs. Held, the lumber bought and intended for erecting a dwelling house, on the site selected by appellant for a homestead, was exempt from forced sale. The petition and evidence showed the time when the land was destined for the future residence of appellant and his family, and the steps taken towards building upon the land, and the reason why he had been prevented from improving and occupying it. The intention to use the lumber in building a dwelling house upon the land to be occupied by him as his residence is evidenced by unmistakable acts. The fact that, at the time the lumber was levied upon, the lumber was not on his land, would not affect the question. [Cobbs v. Coleman, 14 Tex. 594; Anderson v. McKay, 30 Tex. 186; Stone v. Darnell, 20 Tex. 11; Franklin v. Coffee, 18 Tex. 413.]

November 3, 1877.

§ 514. Proof and judgment must conform to allegations. The court cannot make up a judgment upon facts not put in issue by the pleadings. The proof must be according to the allegations of the parties, and if it goes beyond the allegations, the court cannot judicially act upon it, as facts not alleged cannot form the basis of a decree. [Denison v. League, 16 Tex. 406; Wright v. Wright, 3 Tex. 168; Hall v. Jackson, id. 309; Guess v. Lubbock, 5 Tex. 535; Chrisman v. Miller, 15 Tex. 160; 9 Peters, 483.]

Eeversed and remanded.  