Burns v. Jones

• Decision Date: 01 January 1872
• Citation: 37 Tex. 50
• Parties: J. R. BURNS AND WIFE v. L. D. JONES AND OTHERS.
• Court: Texas Supreme Court

37 Tex. 50

J. R. BURNS AND WIFE

v.L. D. JONES AND OTHERS.

Supreme Court of Texas.

1872.

1. When no constituent member of a family remains, the homestead exemption ceases to exist, and the property becomes subject to the debts of the last owner, notwithstanding he left children or other descendants who were not members of his family at the time of his death. (Hoffman v. Neuhaus, 30 Texas, 633; and Sossaman v. Powell, 21 Texas, 664, cited with approval by the court.)

2. A constable of a city, town, or village, is, it seems, a constable of the county, within the meaning of the act of November 12th, 1866, and as such is competent to make service of legal process. (Acts of 1866, page 199.)

APPEAL from Fayette. Tried below before the Hon. I. B. McFarland.

The citation was served by the town constable of the town of La Grange, and the defendants, Burns and wife, moved to quash the return, insisting that the officer was not a “constable of the county.” The overruling of this motion was reserved, and assigned as error.

The action was trespass to try title to certain improved lots in the town of La Grange, which had been the homestead of S. H. Doxey and his wife, whose heirs, the appellees, were plaintiffs in the case.

The defense was that Mrs. Burns had purchased the property at a sale of Doxey's administrator, duly made under order of the probate court, for the payment of debts. The answer set up this defense, in connection with full and specific allegations of the proceedings in the probate court, and also that none of the plaintiffs were members of the family of Doxey and wife at the time of their death, in 1867. The plaintiffs' exception to this answer was sustained by the court below, and this also was reserved and assigned as error.

The judgment below was for the plaintiffs, and the defendants appealed.

J. R. Burns, and Long & Long, for the appellants.

George Quinan, and W. H. Gazley, for the appellees.

WALKER, J.

The first assignment of error is not well taken. Service by any constable residing within the limits of the county, though he be elected or appointed to serve within a city, town, or village, is a sufficient compliance with the statute. But we need not notice the assignments in their order.

The second assignment covers the ground on which the case must be decided. The plea in bar was a good defense to the action. At the death of S. H. Doxey and wife, who appear to have died almost contemporaneously, the character and attributes of a homestead ceased to attach to the property in question, as no family remained to occupy it as such. The charge of the court did not properly give the law to the jury. The plaintiffs, as heirs of Doxey and wife, not being members of the family at the time of their...