Blum v. Gaines

• Decision Date: 25 May 1882
• Docket Number: Case No. 4619.
• Citation: 57 Tex. 119
• Parties: LEON BLUM ET AL. v. SAMUEL GAINES ET AL.
• Court: Texas Supreme Court

57 Tex. 119

LEON BLUM ET AL.

v.SAMUEL GAINES ET AL.

Case No. 4619.

Supreme Court of Texas.

May 25, 1882.

APPEAL from Burleson. Tried below before the Hon. I. B. McFarlane.

C. C. Lockett and Scott & Levi, for appellants.

I. The constitution and laws protect the homestead only in favor of a family. Const. 1869, art. XII, sec. 15; Const. 1876, art. XVI, secs. 50-52; Revised Code, art. 2335; Howard v. Marshall, 48 Tex., 481;Whitehead v. Nicholson, 48 Tex., 530; Thompson on Homesteads, ch. 2, sec. 68 et seq.; Keiffer v. Barney, 31 Ala., 196; Cooper v. Cooper, 23 Ohio St., 488; Dobson v. Butler, 17 Mo., 87.

II. The word “family” necessarily implies an aggregation of individuals, consisting of two or more persons. 1 Bouy??., p. 512; Webster's Dictionary; Wilson v. Cochran, 31 Tex., 677; Thompson on Homesteads, ch. 2.

III. The only special exemption or privilege in a homestead, accorded to the widower as surviving husband, is that the homestead shall not be partitioned among the heirs of deceased during his life-time, etc.; and there being no facts to entitle Gaines to that special exemption, the property lost its homestead character upon the death of Margaret Gaines. R. S., ch. 18, art. 2009; Kessler v. Draub, 52 Tex., 575, and citations; Pasch. Dig., art. 1305; Smyth on Homesteads, sec. 152 et seq.;22 Wis., 139;43 N. H., 308;40 N. H., 249;8 Tex., 312;9 Tex., 630;45 Tex., 559; Id., 588; Woodworth v. Comstock, 10 Allen, 425;Doyle v. Coburn, 6 Allen, 71; R. S., ch. 18, title 37.

Sayles & Bassett, Ragsdale and McIver, for appellee.

BONNER, ASSOCIATE JUSTICE.

This case comes up on an agreed statement, from which we make the following extract, as presenting the main question, viz.:

“The premises in controversy consisted of three acres of land, situated in the little village of Tunis, in Burleson county, enclosed, and having thereon a dwelling-house, store-house, smoke-house, stable and crib, and other improvements, the whole worth about $1,000. It appeared by competent evidence that prior to the sheriff's sale under which the defendants below, Blum et al., claim, the premises were the property of the plaintiff Samuel Gaines. In 1875 the plaintiff was a married man, the husband of Margaret Gaines, and they together owned and occupied the premises as their homestead down to the death of Margaret Gaines, which occurred in January, 1876. After her death the plaintiff below, Samuel Gaines, continued to occupy the premises as his home down to his eviction, claiming them as his homestead. Neither Samuel Gaines nor Margaret Gaines had any children or dependent relatives living with them, and after the death of his wife Samuel Gaines lived on the premises alone, conducting a small mercantile business in the store. During his wife's life-time the plaintiff became indebted to the defendants L. & H. Blum in the sum of $1,400 or thereabouts, for which they held his note, payable in Galveston. After his wife's death, about July, 1878, the debt having been reduced by payment and credits to about $500, defendants instituted suit on it against Samuel Gaines, in the county court of Galveston county, and obtained judgment thereon. Afterwards, by proper proceedings, an alias execution on said judgment, directed to Burleson county, was by the sheriff thereof levied on the premises in controversy, and they were duly sold at sheriff's sale, the said Leon & H. Blum becoming the purchasers, and receiving the sheriff's deed. In December, 1878, they sued for, sequestered the premises, and Gaines having failed to replevy within the time limited by the law, they replevied and dismissed their suit, but retaining the possession of the premises. Whereupon plaintiff brought this suit to recover the property and rents. It sufficiently appeared that the rent of the premises was worth what the jury allowed for them in their verdict. The only question presented for the decision of the court is whether or not, upon the foregoing facts, the plaintiff was entitled to claim the homestead exemption in the premises. If he was, then the judgment of the court below is to be affirmed; otherwise reversed.”

We are asked in this appeal (and this is the sole question presented for our consideration) to reconsider and overrule the case of Kessler v. Draub, 52 Tex., 575, in which it was held that, when a homestead has been once acquired, the subsequent death, marriage or removal of all the individuals who composed the family, except the surviving husband, does not subject the homestead to forced sale, under a judgment against him, he still occupying it as a home.

The homestead estate was one unknown to the common law, and is of very recent origin, having been created by statute and under the construction given by the courts. As might have been reasonably expected in the legislation upon a new subject matter, the statutes did not in express terms anticipate and provide for every possible phase of the question, and the courts have been called upon to construe and apply the law to new cases as they would arise. This construction has almost invariably been a liberal one, and designed to carry out the beneficent purposes and intention of the legislature. This court has repeatedly called attention to the necessity of more specific legislation on the subject, and in the absence of it has been forced to decide cases not so much from the letter of the law as from its evident spirit and intention. These decisions have not been made in a spirit of judicial legislation, but in an anxious desire and effort, by analogy and otherwise, to arrive at a proper construction of the constitution and laws. Our statutes pertaining to estates of deceased persons have generally made express...