Anderson v. Sessions

• Decision Date: 20 May 1899
• Citation: 51 S.W. 874
• Parties: ANDERSON v. SESSIONS.
• Court: Texas Court of Appeals

51 S.W. 874

ANDERSON v. SESSIONS.

Court of Civil Appeals of Texas.

May 20, 1899.

Appeal from district court, Montague county; D. E. Barrett, Judge.

Action by S. A. Sessions against A. J. Anderson and another. From a judgment for plaintiff, defendant Anderson appeals. Affirmed.

F. M. Brantly, for appellant. Jas. A. Graham and Thos. F. Turner, for appellee.

HUNTER, J.

This was a suit instituted in the district court of Montague county, on the 28th day of June, 1898, by appellee against W. R. Pierson, constable of precinct No. 4 Montague county, and A. J. Anderson, appellant, to enjoin the sale by said constable of a tract of land situated in the town of Bowie, in said Montague county, under an execution issued out of the justice court of precinct No. 1, Tarrant county, from a judgment rendered therein in favor of A. J. Anderson against S. A. Sessions. The ground on which the sale was sought to be enjoined was that the property, consisting of about two acres, constituted part of the residence homestead of appellee and his family, and as such was exempt from such sale; that, while it was detached from the dwelling of appellee, yet, by reason of its cultivation, use, etc., it constituted part of the residence homestead of appellee. Appellant, Anderson, and the constable answered by general demurrer and special exception, admitting the existence of the judgment in the justice court mentioned, as well as the issuance and levy of the execution mentioned therefrom on the property in question, but denying that the property levied upon was exempt, or constituted any part of the homestead of appellee or his family. They further averred that appellee acquired the property in question simply for purposes of speculation, and so held the same at the time of the levy in question, and not for the purpose of a homestead at all, and that the claim of appellee that the same constituted any part of his homestead was a mere pretense, a fraud, and a sham, sought to be asserted with the fraudulent intent of preventing the just seizure and subjecting of the property towards the satisfaction of his just debts. The case was tried by the court without a jury, and judgment was rendered perpetuating the injunction, the court below finding that the lot in question was part of the residence homestead of appellee, and from this judgment this appeal is taken.

The following are the facts as found by the district judge, and which we adopt: "As to matters of fact, I find that the defendant Anderson, in the justice court of Tarrant county, recovered judgment against the plaintiff, and that the execution sought to be enjoined was issued upon said judgment, and levied upon the premises in controversy as the property of plaintiff, as alleged in the plaintiff's petition. I also find that plaintiff is, and was at the time of such levy, a married man, and the head of a family consisting of himself, his wife, and three children. That with his family he has continuously resided in Bowie, Montague county, Tex., on lot 8, block 48, of Stalling's addition to Bowie, which is 70×140 feet, owned by him for many years last past. The premises in controversy are also situated within the corporate limits of said city of Bowie, from 800 to 1,000 yards from the lot on which plaintiff resides. He purchased the premises in controversy in January, 1895, intending, when he got able to do so, to build upon it, and move onto it with his family, and very soon after his purchase inclosed the same with a fence, and planted a portion thereof in fruit trees and grape and blackberry vines, and the next season planted the greater portion of the remainder in such trees and vines. That during the year 1895, and for each year since, including the present year, he has cultivated said premises in garden vegetables, exclusively for the use of himself and his family, carrying the vegetables and fruits raised thereon to the place of his residence, to be eaten by his family. He has never sold any of the products raised on such premises, and no part of said premises has been used, since plaintiff purchased the same, for raising products for market, but solely for the table use of plaintiff and family, and no part of said premises has been rented out to any person. That, since acquiring said premises, plaintiff has not used any other piece of ground as a garden, and on said lot 8, where he resides, he has no garden and no room for any. The premises in controversy consist of about two acres of ground, worth about $150, and these premises, together with said lot 8, on which plaintiff resides, are worth, and have always been worth, less than $5,000." To this we add another point from the statement of facts: That the appellee's business or occupation was that of a drummer or traveling salesman, and had been for eight years previous to the levy, and the lot in question was not claimed as his business homestead, but as part of his residence homestead, and that the two lots were situated in different parts of the city altogether, the one in controversy having been acquired several years after the establishment of his home on the other. Upon the facts found by him, the learned district judge filed the following conclusion of law: "From the foregoing findings of fact I conclude, as a matter of law, that the premises in controversy at the time of the levy of said execution thereon constituted a part of the homestead of plaintiff and his family, being used for the purposes of a home, and hence that the same was exempt from such levy."

The contention of appellant is (1) that the lot was not being used for the purposes of a home, and that the products thereof, though used only by the family for their maintenance and pleasure, were not necessary to the use of the mansion or home, as a home, nor did they or the lot contribute to the proper use or enjoyment of such mansion or home, though they may have contributed to the support of the family; and (2) that the lot was not connected with, or appurtenant to, the residence lot, but was about half a mile distant therefrom, and that its use was in no way essential to the proper occupancy, use, or enjoyment of the home by appellee or his family.

We cannot agree with appellant in his contentions. Our constitution provides: "The homestead in a city, town or village, shall consist of lot or lots, not to exceed in value five thousand dollars at the time of their designation as the homestead, without reference to the value of any improvements thereon: provided, that the same shall be used for the purposes of a home, or as a place to exercise the calling or business of the head of a family." Const. 1876, art. 16, § 51. This provision does not require that the lots shall be connected with each other, or even that they shall be near to each other, but only that they must be within the city, town, or village limits. Nor does it require that they should be necessary or essential to the occupancy, use, or enjoyment of the mansion house, but only that they be used for the purposes of a home.

The case of Iken v. Olenick, 42 Tex. 196, is relied on by appellant to show that the lot must be contiguous to the residence lot. But that decision was rendered in 1875, under the constitution of 1869, which contained no such provision relating to the use of the lots for the purposes of a home as are contained in our present constitution of 1876. The constitution under which that decision was rendered provided for the exemption from forced sale as the homestead of "any city, town or village lot or lots not to exceed $5,000 in value"; but that decision was made to turn on Worcester's definition of the word "homestead," —"the place of the house; a mansion house, with the adjoining land;" and, following this definition, our supreme court, as then constituted, overruled a line of decisions running back for nearly 20 years, which were more liberal to the family, as they allowed as part of the homestead the lot upon which the husband carried on his business to support his family, as well as all others occupied by the family, not exceeding $2,000 in value, although disconnected and remote from the residence lot. Pryor v. Stone, 19 Tex. 373. In the case last cited, Chief Justice Hemphill, construing our constitution of 1845 (article 7, § 22), which exempted "any town or city lot or lots, in value not to exceed $2,000," said: "It allows any number of lots, not to exceed $2,000, and it cannot be material how many or how far or how near or remote from each other may be the lots occupied for the convenience of the family and for the prosecution of the business or employment of its head or members." Thus the people of Texas understood their homestead laws for two decades, and seem to have been contented and happy, when the decision in Iken v. Olenick suddenly made its appearance in their Reports, and in less than 12 months from the rendition thereof a convention of delegates from the people had met in Austin, and had framed the present constitution, in which, in our opinion, they in unmistakable terms framed a homestead law exactly in accord with Chief Justice Hemphill's decision; overruling, as it were, the decision in Iken v. Olenick, and confirming that in Pryor v. Stone. So that now, whatever may have been Mr. Worcester's definition of the word "homestead," the people of Texas have made a definition...