Clark v. Campbell

• Decision Date: 01 January 1873
• Court: Texas Supreme Court
• Parties: L. M. CLARK AND WIFE v. NOLAN & CAMPBELL.

38 Tex. 416

L. M. CLARK AND WIFE

v.NOLAN & CAMPBELL.

Supreme Court of Texas.

1873.

1. At the death of the wife, the title to one-half of the homestead passes to and vests in the children of the marriage; and that half passes beyond the husband's power of alienation.

2. In changing a rural homestead into a town homestead, the lots made in dividing up the land, not used as a homestead, but merely kept for purpose of sale or speculation, becomes by such change community property; and at the death of the wife an undivided one-half interest passes to and becomes vested in the issue of the marriage, to the exclusion of all power or authority in the surviving husband over it.

APPEAL from Grimes. Tried below before the Hon. James R. Burnett.

The facts sufficiently appear in the opinion of the court.

Boone & Hutcheson, for appellants.

John C. Easton, for appellees.

OGDEN, J.

In 1856 James Nolan purchased from M. J. Duke one hundred and twenty acres of land within the present location of the city of Navasota, and settled upon it, with his wife and one child, as his homestead. In 1859 Nolan and wife deeded to the Houston & Texas Central Railroad eighty acres of this land for a depot. About the same time Nolan laid off the remaining forty acres, which was the community property of himself and wife, into lots, blocks, streets and alleys, as a part of the town of Navasota, for the purpose of making sale of the same as town or city property; and, about the same time, he built a hotel, and other necessary buildings, upon two of the blocks, and moved his family into the same as his homestead. In the year 1860 Margaret Nolan died, leaving her husband and one child surviving, who continued to reside on the lots occupied by the hotel, until the marriage of Martha, the child, to Clark, one of the appellants. After the death of his wife James Nolan sold the lots, now the subject of this suit, and the daughter, Martha Clark, as the sole heir of Margaret Nolan, together with her husband, has brought this suit to recover the one-half of the land which she, Martha, claims to have inherited from her mother.

The cause was submitted to a jury in the district court, and a verdict and judgment rendered against the plaintiffs, and they have appealed.

There is no question that the land was the community property of James and Margaret Nolan, neither is there any question that it formerly composed a part of the homestead of James Nolan and his family. And the only questions presented by the record, which require a decision by this court, are, could James Nolan, after the death of his wife, Margaret, sell the homestead, or any part of the same, and make a full and perfect title to the purchaser? And if so, then were the lots, the subject matter of this suit, a part of the homestead of James Nolan at the time of the sale by him?

The homestead exemption, as provided for by the constitution and laws of this state, was designed mainly as a protection against the eager pursuit of creditors; to secure to the families of those who had been unfortunate in financial matters a home and a shelter, where the officers of the law dare not intrude. It is therefore wisely and humanely provided by the constitution, that the homestead shall not be subject to forced sale. It is also intended as a special protection to the wife and helpless children of an improvident, reckless or worthless husband and father; and hence the provision, that the homestead shall not be sold, or incumbered, without the emphatic sanction of the wife, expressed in the most solemn manner. But when there are no creditors demanding payment of their debts, and no wife or family to be protected, or to interpose an objection to the disposition of the homestead, then the reasons for a constitutional or legal dedication no longer exist, and the property, which may once have been held as such, will no longer be subject to the rules or restrictions controlling the homestead as such.

It appears pretty certain that at the time of the death of Margaret Nolan neither she nor her husband owed any debts chargeable to their common property. If this be so, then article 1305 expressly declares, that the homestead rights shall not prevent the partition and distribution of the estate of the deceased among her heirs and distributees. If this forty acres of land in Navasota was the community property of James Nolan and his wife Margaret, and at her death there were no community debts to be paid out of that property, then one-half of the land went to and became the absolute property of the survivor; and the other half immediately passed to and vested in her child and only heir, and became as absolutely the property of that child as the other half did of the survivors; and from the death of the wife and mother the father and child became equal owners, and tenants in common, of all the community estate of the deceased wife and surviving husband. Their estates and interests were, in all things, separate and distinct, excepting that of possession and the right of possession. The father could no more alienate or incumber the rights or title of the daughter than the daughter could those of the father. The interest of the one was entirely distinct and independent of the other, and either might have demanded a partition of all the community estate after the...