Cheswick v. Freeman

• Decision Date: 25 January 1956
• Docket Number: No. A-5511,A-5511
• Citation: 155 Tex. 372,287 S.W.2d 171
• Parties: Peter P. CHESWICK et al., Petitioners, v. Fred FREEMAN, Respondent.
• Court: Texas Supreme Court

Page 171

287 S.W.2d 171

155 Tex. 372

Peter P. CHESWICK et al., Petitioners, v. Fred FREEMAN, Respondent.

No. A-5511.

Supreme Court of Texas.

Jan. 25, 1956.

Rehearing Denied Feb. 29, 1956.

Peter P. Cheswick, Houston, for petitioners.

Bradley & Geren, Groesbeck, for respondent.

HICKMAN, Chief Justice.

Petitioner, Louise Freeman, obtained a judgment for money against respondent, Fred Freeman, her former husband, in Harris County in May, 1951, an interest in which judgment she assigned to petitioner Cheswick. The judgment was abstracted in Limestone County the following month, and thereafter an execution issued out of the Harris County court was caused to be levied on fifty acres of land in Limestone County as the property of respondent and notice to sell the property on October 2, 1951, was posted by the sheriff of that county. Respondent filed this suit to enjoin the sale and was awarded first a temporary restraining order, followed by a temporary injunction, which, upon final trial upon the merits, was made permanent. The trial court's judgment was affirmed by the Court of Civil Appeals. 282 S.W.2d 315.

The sole question for decision is whether the 50-acre tract of land was the homestead of respondent and, as such, exempt from sale under the execution. It is the contention of respondent that the property became his homestead following the death of his father in 1941, or in the alternative, that it became his homestead following the death of his mother in 1949. The facts bearing on the first contention may be briefly stated as follows: Respondent's father and mother owned a 67-acre tract of land in Limestone County, of which the 50-acre tract in controversy is a part, together with a nonadjacent 60-acre tract. This land was their homestead. The father died intestate in 1941. Following his death, respondent and his wife, with the consent of his mother, lived with her on the 67-acre tract until 1945, when they moved to Waco. In 1949 respondent's mother died intestate, after which he and his brother, her sole heirs, partitioned their parents' estate, respondent receiving as his portion the 50-acre tract here involved and the brother receiving the balance of the 67-acre tract together with the 60-acre tract. Respondent's use and occupancy of the land from 1941 to 1945 were of such nature as would have impressed his interest with the homestead character had the mother not been living at that time.

Under the provisions of Section 52, Article XVI, of our State Constitution, Vernon's Ann.St., upon the death of respondent's father this property became the homestead of his mother for her lifetime or so long as she might elect to use or occupy the same as her homestead. She continued to use and occupy the property as her homestead until her death, and no question of abandonment or waiver of her homestead right therein is presented. It is the rule that so long as respondent's mother continued to occupy this property as her homestead her possessory right therein was exclusive and precluded a similar right in her children. This property could not be impressed with two homestead right at the same time, one in favor of the mother and the other in favor of her son. Massillon Engine & Thresher Co. v. Barrow, Tex.Com.App., 231 S.W. 368; Rettig v. Houston West End Realty Co., Tex.Com.App., 254 S.W. 765; Johnson v. Prosper State Bank, Tex.Civ.App., 125 S.W.2d 707, affirmed by memorandum opinion 134 Tex. 677, 138 S.W.2d 1117; Cook v. Young, Tex.Civ.App., 269 S.W.2d 457, no writ history. Nunn on Exemptions, p. 120, correctly states the rule as established by the above authorities in this language:

'* * * The right to the use and occupancy as a homestead in the surviving parent is exclusive and precludes a similar right in the heirs of the deceased so long as such right is exercised by such survivor. And this is true although the heir may be upon the property with the consent of her surviving parent, for such holding cannot attach to the title taken by the heir, in that, the homestead rights of the survivor run to the entire homestead tract and exclude all others.'

Respondent relies upon Thompson & Sons Lumber Co. v. Clifton, 132 Tex. 366, 124 S.W.2d 106, as an authority supporting his contention that he acquired a homestead right in this land during the lifetime of his mother. In our view that case affords no support for his position. The question of the right of a child to impress a homestead character upon land which is the homestead of one of his parents was not before the court for decision in that case. The opinion discloses that the parents of the homestead claimant had their home in the city of Mexia, but owned in community 600 acres of land outside of the city. A son resided on a portion of the 600 acres after the death of his mother but before the death of his father, who continued to live in his home in Mexia. Had the parents established...