Inge v. Cain

• Decision Date: 27 November 1885
• Docket Number: Case No. 1881
• Citation: 65 Tex. 75
• Parties: W. C. INGE AND J. W. BORING v. J. H. CAIN.
• Court: Texas Supreme Court

65 Tex. 75

W. C. INGE AND J. W. BORING

v.J. H. CAIN.

Case No. 1881

Supreme Court of Texas.

Nov. 27, 1885.

APPEAL from Gregg. Tried below before Hon. Felix J. McCord.

This is an ordinary suit of trespass to try title and for damages, instituted by appellee against W. C. Inge, appellant, and The Mutual Fire Shielders Association. The land in controversy is described as follows: A part of the H. McNutt headright survey in Gregg county, and known and designated upon the map of the town of Longview as the east half of the north half of lot number six, in lot number twenty-one.

On July 21, 1885, J. W. Boring, assignee of the estate of T. E. Kennard, filed his petition of intervention, and claimed the property by virtue of a deed of assignment from Kennard to himself, which deed of assignment was executed and delivered on January 20, 1885. There was situated upon the property in controversy a two-story brick storehouse. T. E. Kennard, who was a married man and living with his family on other lots in the same city, occupied the house as a dry goods store, from March 1, 1882, until January 20, 1885, upon which last mentioned date he assigned his property--such as was not exempt--to J. W. Boring for the benefit of his creditors. In connection with his dry goods business he had been and was carrying on, in the building, a fire insurance business, and soon after he made the assignment he moved his insurance office into the second story of the storehouse, and there conducted his business until the sale of the storehouse by himself and wife to appellant Inge, on April 13, 1885. Both defendants answered plaintiff's petition by general demurrer and plea of not guilty, and the appellant, W. C. Inge, plead specially the homestead exemption of the property to T. E. Kennard and wife; that the deed of trust from T. E. Kennard to A. S. Taylor, trustee for J. H. Cain, appellee, and the sale thereunder, by virtue of which appellee claimed title, were void and imperative under the constitution and law, and passed no title to appellee.

And appellant, Inge, answered the intervenor's petition by general demurrer and general denial. All parties agreed on the Texas & Pacific Railway company as common source of title by written instrument.

Appellee deraigned title as follows: Texas & Pacific Railway company to Boring & Kennard, by deed dated May 19, 1874. J. W. Boring to T. E. Kennard, by deed dated March 1, 1882. T. E. Kennard to A. S. Taylor, trustee for J. H. Cain, deed of trust, dated January 11, 1883. A. S. Taylor, trustee to John H. Cain, by deed dated April 11, 1885.

Appellant, W. C. Inge, relied upon the same title down to T. E. Kennard, and claimed title by virtue of a deed from T. E. Kennard and his wife, Sarah E. Kennard, dated April 13, 1885.

J. W. Boring, the intervenor, claimed title by virtue of a deed of assignment from T. E. Kennard to him, dated January 20, 1885.

The case came on for trial August 7, 1885. The court overruled appellant's general demurrer to appellee's general and first supplemental petitions, and also overruled defendant's general demurrer to intervenor's first original petition, and upon trial of the cause (a jury being waived) the court rendered judgment for appellee, for the land and $172.50 damages against defendants and intervenor.

T. M. Campbell and J. M. Duncan, for appellant, Inge, cited: Jacobs, Bernheim & Co. v. Hawkins, 63 Tex., 1;Axer v. Bassett, 63 Tex., 545.

C. B. & S. B. Kilgore, for appellant, Boring, cited: Miller v. Menke, 56 Tex., 539;Shryock & Rowland v. Latimer, 57 Tex., 675; McDonald v. Campbell, 57 Tex., 614; Scheuber et al. v. Ballowe et al. 5 Law Rev., 325; Tilman v. Brown, 5 Law Rev., 443.

Booty & Young and M. R. Geer, for appellee, as to the effect of the deed of assignment to Boring, cited: Hall v. Bliss, 118 Mass., 554;Chace v. Chapin, 130 Mass., 128;17 N. Y., 580; in re. Howe, 1 Paige's, Ch. 125; 2 Paige's Ch., 567; Haggerty v. Palmer, 6 Johnson's Ch., 437; 11 Ala., 1067; in re. Lambert, 2 B. R., 426; in re. Bowe, 1 B. R., 628.

On the trust deed being simply voidable, they cited: Sec. 50, General Provisions Constitution, 1875; Stuart v. Mackay, 16 Tex., 56;57 Tex., 674;Allen v. Cook, 26 Barb., 374;4 Allen, 516; Heinmelman v. Schmidt, 23 Cal., 117;Gee v. Moore, 14 Cal., 472;Bowman v. Norton, 16 Cal., 214; Folsom v. Carli, 5 Minn., 264; Tillatson v. Mellard, 7 Minn., 419; Vasey v. Trustees, &c., 59 Ill., 188-9;48 Ill., 369;69 Ill., 448.

On the question of homestead, they cited: 55 Tex., 355; Cooley on Const. Lim., 4th ed., pp. 78-80; Smith v. Saxton, 6 Pick., 486;Stuart v. Mackay, 16 Tex., 56;Shyrock & Rowland v. Latimer, 57 Tex., 674;23 Cal., 117;14 Cal., 472;16 Cal., 213;5 Minn., 269;7 Minn., 419;55 Tex., 355;56 Tex., 287;58 Tex., 334.

ROBERTSON, ASSOCIATE JUSTICE.

The constitution of 1845 (sec. 22 of Gen. Prov.) exempted the homestead of the family from forced sale and prohibited the husband from disposing of it without the consent of the wife. The right of the husband and wife to encumber or dispose of it was not restricted. An encumbrance which could be effective only through the instrumentality of a forced sale, was neither void nor voidable, but, by reason of the inhibition of forced sales of the homestead, inoperative. Sampson & Kune v. Williamson, 6 Tex., 109. If the lien could be foreclosed without a forced sale, as by power of sale in a mortgage or deed of trust, it was both valid and effective. Bomback v. Sykes, 24 Tex., 217.

The lien could be foreclosed by forced sale of the property, if the homestead use had ceased at the date of the remedy. Lee v. Kingsbury, 13 Tex., 68;Stuart v. Mackay, 16 Tex., 56.

The constitution of 1869, in these respects, was not different from that of 1845. Jordan v. Peak, 38 Tex., 429;Petty v. Barrett, 37 Tex., 84.

If the homestead was the separate property of the husband, or was community property, a lien given upon it by the husband alone would be inoperative only whilst the property was protected by the homestead use. Stuart v. Mackay, supra.

This use could not be disturbed under the lien given by the husband, but the lien was valid; its fruition was dependent upon the contingency of a cessation of the unassailable use.

Under the constitutions of 1845 and 1866, the urban homestead could consist of a lot, or lots, not exceeding in value, with the improvements upon them, two thousand dollars. In this respect the constitution of 1869 made material changes. Under it the urban homestead might consist of a lot or lots not exceeding in value at the time of their destination, five thousand dollars, exclusive of improvements. Under all these constitutions the lots had to be used for homestead purposes. The cases of Hancock v. Morgan, 17 Tex., 584;Pryor v. Stone, 19 Tex., 371; and Moore v. Whitis, 30 Tex., 443, had indicated that the use of one of these lots claimed as an urban homestead as the place of business of the head of the family, secured it the constitutional protection. But in Iken & Co. v. Olenick, 42 Tex., 200, the cases were reviewed, and the conclusion reached that such use would not protect the lot so used from forced sale. We have said thus much to show the situation when the constitution of 1876 was adopted. Liens upon the homestead, if given by the husband alone, were valid; and if given by the husband and wife, were valid; and if so given as to be effective without a forced sale, were valid and effective, and the place of business of the head of a family was not, as such, protected. The constitution of 1845 and that of 1866, provided for the protection of the homestead in precisely the same language. The constitution of 1869 changed the value of the urban homestead, but provided for its protection in the language substantially of the constitution of 1845. In the constitution of 1876, two distinctly new features are added. One is the protection of the place of business of the head of the family, the unprotected condition of which had then been recently declared in Iken & Co. v. Olenick. No difficulty is made on this appeal in the construction or meaning of this feature. All the parties agree that the house and lot in controversy, for several years prior to January 20, 1885, was the place of business and part of the homestead of T. E. Kennard.

The other feature added in the constitution of 1876 is presented in the following language: “No mortgage, trust deed, or other lien on the homestead, shall ever be valid, * * * * whether such mortgage, trust deed or other lien shall have been created by the husband alone, or together with his wife, and all pretended sales of the homestead, involving any condition of defeasance, shall be void.” Sec. 51, Gen. Prov. Trust deeds containing powers of sale, made by both husband and wife, before this, were both valid and effective. Now they are reduced to the same footing with mortgages and other liens. Mortgages and other liens were valid before, but not effective until the property was stripped of the homestead character. By this provision, none such “shall ever be valid.” If they are never valid, they can never be operative. A distinction was also drawn before this between liens created by the husband alone, and those created by both husband and wife. That distinction is abolished. Whether made by one or both, it shall not “ever be valid.” Sales involving a condition of defeasance are mortgages. Such sales are declared void; but mortgages shall not “ever be valid.” There is no reason for distinguishing their fates, and the language does not do so. What cannot “ever be valid,” is never valid, and what is never valid, is always void. Such expressions as void, invalid, are often used to denote only a qualified invalidity, and, whether used to denote that the thing prohibited is as if it were not, or...