Herman Iken & Co. v. Olenick

• Decision Date: 01 January 1874
• Citation: 42 Tex. 195
• Parties: HERMAN IKEN AND CO. v. TH. OLENICK AND OTHERS.
• Court: Texas Supreme Court

42 Tex. 195

HERMAN IKEN AND CO.

v.TH. OLENICK AND OTHERS.

Supreme Court of Texas.

1874.

The facts are stated in the opinion.

Friend & Smith, for appellants.

H. Clay Pleasants, for appellees.

MOORE, J.

The note upon which this suit was brought was given, as appellees insist, for the purchase-money of a lot of one acre of land, situated in Meyersville, sold under and by virtue of a trust deed, executed by John Kron to secure payment of a debt owing by him to appellants. And unless this lot when sold was part of the homestead of said Kron and wife, there is no pretense that appellees had any valid defense to the suit.

It appears from the statement of facts, that the lot in question was purchased by Kron. He was therefore authorized to sell and dispose of it, whether is was his separate property, or belonged to the community, as we must presume, unless some reason why he could not do so is shown by those who object to the validity of his conveyance. If he could not sell it, because it was a part of the homestead, the burden of showing this was upon the appellees, as the title of the trustees, by whom the sale was made, appeared on its face regular and com plete.

The testimony upon which appellees relied to do this, seems to us quite meagre and unsatisfactory, even if we were prepared to sanction the liberal and broad rule of construction for ascertaining and determining the extent and limits of the homestead exemption, which was adopted in the court below. The purport of the testimony on this point, is, that Kron and wife lived at Meyersville at the time he executed the deed of trust, and when the sale under it was made; that he owned there four acres of land, in two separate tracts or lots; that on the lot on which he gave the deed of trust, there was a store and warehouse, in which he was doing business as a merchant that he had a wife and children; the residence of himself and family was on the other lot, which contained three acres. That he owned no land but these two lots, which together were worth two thousand dollars or two thousand and five hundred dollars. They were situated from three to four hundred yard apart, and other lots or tracts of land intervened between them. “Meyersville,” says the statement of facts, “is not laid off in lots and streets. It is called a settlement, and is a small collection of houses in the country.”

Does the homestead right embrace these two lots thus disconnected, and appropriated to these dissimilar and distinct uses and purposes?

Before undertaking the determination of this question, it may not be amiss to consider whether the homestead of Kron and wife should be regarded as a rural or urban homestead. The constitutional limitation of the extent and value between these two classes of homesteads presents a marked difference between them. If the homestead is in the country, there is no restriction upon its value, but it must not exceed two hundred acres. While, if it is in town, the limitation is on the value of the town lots of which it consists, at the time of their dedication as a homestead, without reference to their subsequently increased value, or that of any improvements placed upon them. From this difference in the restriction and limitation upon the extent and value of these different classes of homestead rights, it seems quite obvious there can (unless under some very extraordinary circumstances, Taylor v. Baulware, 17 Texas, 77) be no blending of them, so that the homestead exemption can be partly in town and partly in the country. It is, therefore, the most favorable view of the homestead claim in this case to regard the lot sold under the trust deed, and that on which Kron's residence was situated, as being in the same category, and as this may be done without doing violence to the evidence in the record, we will so treat and consider them.

In determining whether the lot for which the note upon which the suit was brought was given, is included in a city, town or village, it is to be noted that the use to which it was applied is such as is much more usual and customary in cities towns and villages, than in the country. The quantity of land included in the tract or lot comports more with a description of town or village lots, than tracts of land in the country. The locality where it is situated has a distinctive name or designation, such as is customary and usual with towns and villages. And in the absence of any evidence tending to a different conclusion, we must, we think, conclude that this lot was included in a village. Although the homestead exemption in the country and that in a city, town or village is so obviously different in its character and extent, there is no certain guide furnished by the constitution by which in all cases they can be plainly and readily distinguished. As there is no definite rule by which the precise time can be determined when the country settlement has grown into the village, or where the unincorporated town or village ends and the country begins, evidently it must often be difficult to say to which class any particular homestead claim belongs. In such cases, and in the absence of proof by which the matter may be decided as one of fact, it seems to us the nature and character of the property in question and the uses and purposes to which it is applied, may be looked to as furnishing the best guide for its determination. The leading and fundamental idea connected with a homestead is unquestionably associated with that of a place of residence for the family, where the independence and security of a home may be enjoyed, without danger of its loss, or harassment and disturbance by reason of the improvidence or misfortune of the head or any other member of the...