Keene v. Wife

• Decision Date: 01 January 1851
• Citation: Keene v. Williamson, 6 Tex. 102 (Tex. 1851)
• Court: Texas Supreme Court
• Parties: SAMPSON & KEENE v. WILLIAMSON AND WIFE.

6 Tex. 102

SAMPSON & KEENE

v.WILLIAMSON AND WIFE.

Supreme Court of Texas.

1851.

A forced sale is one which is made under the process of the court and in the mode prescribed by law. Therefore the homestead, which is exempted by the Constitution from “forced sale,” cannot be sold under the process of the court; and it matters not what form the contract assumes, nor how willing the head of the family may be, it is an immunity conferred by the Constitution for purposes beyond the mere pleasure of the individual, and cannot be renounced.

The case of Francois & Border v. Hollis and Wife, as to the power of the wife to incumber her separate property, cited and approved. (Note 17.)

The doctrine of mortgage discussed.

The propriety of adopting a simpler and less deceptive form of mortgage suggested.

A general power of alienation, not conferred for any special object or to effect any specific purpose, includes the power to mortgage.

The exemption from “forced sale” is not confined to an exemption from an absolute alienation of the entire interest, but includes exemption from any species of execution, or any forced disposition of the property, whether partial or total, which would disturb the family in the quiet and uninterrupted possession of their home, with the property thereto attached; and the restraint against “alienation” without the assent of the wife is equally comprehensive.

The head of the family, if a married man, with the assent of the wife in the form prescribed by law, may make an absolute sale of the homestead, or may mortgage it, with a power of sale by the mortgagee on default of payment. A mortgage depending for its enforcement on judicial process would be ineffectual, because a sale under such process would be “forced.” But a sale under a power in a mortgagee or trustee would not be a “forced sale.” (Note 18.)

All transactions in which the assent of the wife is obtained to any disposition of the homestead, whether by lease, mortgage, or absolute sale, would doubtless be scrutinized by the court with jealous vigilance, and her rights be protected against the influence of force, fraud, or mistake. (Note 19.)

Appeal from Harris. Suit by the appellants on a note of the husband secured by mortgage upon the homestead. Both the husband and wife were parties to the mortgage. The petition prayed for judgment for the amount due, and for “a decree foreclosing the equity of redemption in the said mortgaged premises, and for a sale of the same to satisfy the said note and interest and costs of suit.” The mortgage was in the usual form until after the words “otherwise it shall remain in full force and effect,” and then continued as follows: “And furthermore, in order in case said sum of money should not be paid at maturity, according to the tenor and effect of said note, that the said Jockusch, Frederick & Co.” (the assignors of the plaintiffs) “may meet with no obstacle or delay in selling or causing to be sold the said block of lots to satisfy said debt, we, the said Marcus, and the said Lucretia, his wife, severally and jointly acknowledge and confess a judgment for the said sum of $2,600, with interest and costs, and authorize and request the honorable the District Court of the said county to enter against us the judgment for said sum, and a decree to sell said property to satisfy the same, waiving all necessity of process, service, citation, or appearance on our part; and we, the said Marcus, and the said Lucretia, wife of said Marcus, and each of us, have constituted and appointed, and by these presents do constitute and appoint, John Fitzgerald, Francis R. Lubbock, and William R. Baker, or either of them, our attorney in fact, with full power to appear for us and each of us in open court in the District Court of said county of Harris, and in our name and in the name of each of us to confess and acknowledge a judgment in favor of the said Jockusch and the said Frederick, or their assigns, for the sum due upon said note, interest and costs, with a decree and order to sell the said block of lots, waiving all formalities, and especially waiving all exemption of said property by law from sale under execution as our homestead.”

A general demurrer of the defendants was sustained as to so much of the petition as sought to foreclose the mortgage and sell the homestead, and the suit was dismissed as to the wife. There was a trial and judgment for plaintiffs against the husband alone for the amount due on the note.

On the trial the mortgage was offered in evidence by the plaintiffs; but an objection to its admissibility was sustained by the court on the ground that after the judgment sustaining the demurrer there was no averment in the petition that would authorize the admission of it. The plaintiffs excepted. There was a motion for a new trial overruled, and plaintiffs appealed.

L. Sherwood, for appellants. [The brief of Mr. Sherwood was not prepared upon the point on which the case was decided, and it is therefore omitted. But see the petition for a rehearing.--REP.]

J. W. Henderson, for appellees. The instrument or mortgage relied on and set out in plaintiff's petition, so far as Mrs. Williamson's rights in the homestead of herself and husband are concerned, was executed in fraud of the Constitution of the State of Texas, and passed no estate.

Upon reference to the 22d section of General Provisions, we find by the clear words of said section that the framers of the Constitution intended, so far as the homestead of the family is concerned, that nothing was intended for the Legislature to hereafter do.

The Constitution, then, is full and complete so far as the homestead is concerned, and interposes an effectual bar to the husband subjecting it to his debts by placing it in a situation that the officers of the law could effect a forced sale, or that he and his wife could place it in that situation. The convention which framed this provision in the Constitution intended to exempt the homestead of all married men from the debts contracted by them, and forever to prevent the same from a forced sale by the officers of the law for such debts.

In the 22d section of the General Provisions will be found an express grant of power to the Legislature to provide a mode by which a married woman may, with the consent of her husbaud, make an absolute sale of the homestead. (Section 22, Gen. Pro. Const.)

The Legislature, in compliance with the power, has provided by law the mode and manner in which a married woman may dispose of her interest with the consent of her husband in and to their homestead. (Acts of 1846, p. 156.)

But upon reference to that statute it will be found that no provision is made for a married woman by which she can create an estate less than an absolute sale of the homestead. And why? Because the Legislature, looking to the Constitution, found that the only requirement was to provide a mode by which an absolute sale could be made; and as the Constitution was silent as to the mode by which she could mortgage the homestead, so the Legislature was silent in the act, and have provided no mode. This is most manifest from the act.

To mortgage a piece of property is placing it subject to the process of the law, and that, it must be admitted, could not be done with the homestead so long as the Constitution is to be regarded as binding on the subject.

And it is no sufficient answer to this view of the case that when the statute confers a greater power, it follows that it includes the lesser power. This is the general doctrine, and would not be controverted in a proper case; but here we must look to the object and intention of the framers of the Constitution in making a provision for the families of all married men.

The first and great object was to secure the family a home under all circumstances and against all possible contingencies; and we submit that if a man whose wife was dead had a family, could he sell or place it liable to his debts? Much less so when it is shown she has a personal right independent of the family.

The wife may sell with the consent of the husband. And why? She may sell it absolutely with a view of removing to some different part of the State, and with the proceeds again place herself in possession of a homestead, which it was the intention of the Constitution to protect her in. (22d section Gen. Prov.)

The mortgage in this case intended to secure the separate debt of the husband is but an incident to the debt; and the wife was incapable of so contracting as to make herself liable for her husband's debts.

H. N. & M. M. Potter, also for appellees. The court below ruled correctly in sustaining defendant's demurrer to plaintiff's petition; because--

1st. The object of the suit as shown by the petition was to subject the homestead of the defendants to a forced sale under execution to pay a debt contracted by the defendant, M. Williamson, subsequent to the adoption of the Constitution of the State. (Const., art. VI., sec. 22; acts of 1846, p. 156, sec. 1.)

[The other points are omitted, not being considered by the court.--REP.]

R. C. Campell, also for appellees. It is not perceived that the language of the 22d section of the Constitution is at all ambiguous. It expressly declares that the homestead “shall not be subject to forced sale for any debts hereafter contracted.” The import and meaning of the term “forced sale” is plain. It means any sale effected or to be effected through the agency of the officers of the law. It has always been so understood in the sense of professional men, and never has been regarded as inapplicable to sales made to enforce mortgages or other liens.

The term “forced sale” is, in our professional language, derived from the civil law, and according to that law is understood in the sense mentioned. In 11 Mart. R., 610, the judge (Porter) delivering the opinion says: “A forced alienation results from a sale made at the time and in the manner prescribed by...