Lane v. Phillips

• Decision Date: 02 December 1887
• Parties: LANE v. PHILLIPS.
• Court: Texas Supreme Court

Page 610

6 S.W. 610

LANE v. PHILLIPS.

Supreme Court of Texas.

December 2, 1887.

Appeal from district court, San Augustine county; JAMES I. PERKINS, Judge.

Trespass by Jerry Lane to try title to certain land occupied by him, his mistress, and their two illegimate children, as a home, and purchased by William Phillips, defendant, at an execution sale. Judgment for defendant. Plaintiff appealed.

S. W. Blount, Jr., for appellant. Rufus Price, for appellee.

STAYTON, J.

This is an action of trespass to try title, which was instituted by the appellant and tried without a jury. It appears from the conclusions of fact filed that the appellant was the owner of the land, and that a judgment was obtained against him on which an execution issued, and this was levied on the land in controversy, which was subsequently sold, and at that sale the appellee became the purchaser. These proceedings are found to be regular and sufficient to pass title to the appellee, unless the property was the homestead of the appellant at the time of the levy. The facts bearing on that question are thus stated in the conclusions of fact: "At the date of said levy plaintiff was a single man, had never been married, but was living in a house on said land, occupying the same as a home, and had so resided more than five years before said time. That he had living with him a woman with whom he had lived and cohabited for more than twelve years before the levy, and two illegitimate children of whom he was the father and said woman the mother; that he and said woman and children lived together in all respects as husband and wife and children, except that he and said woman had never been married." It further appeared that part of the land was cultivated. There is also a finding that a sister of the appellant and her children lived on the land, which was contiguous to some owned by her; but as this fact has no influence upon the decision which will be made on this appeal, the particulars of the sister's occupancy need not be stated. The court found that such an aggregation of persons did not constitute a family within the meaning of the law exempting the homestead from forced sale, and entered a judgment in favor of the defendant. The correctness of this conclusion is the sole question in the case, the tract of land containing less than 200 acres.

It is very clear that a family, such as is contemplated by the constitution and laws exempting the homestead from forced sale, cannot be made up with constituents consisting only of a man and woman living together as were the appellant and the woman with whom he was living. The law prohibits and makes penal such cohabitation as existed between the appellant and the woman with whom he lived, and it never was intended that persons so associated, and living in plain violation of law, should be deemed a family which it is the purpose of the homestead exemption to protect. To constitute a family, within the meaning of the law giving the homestead exemption, the persons who dwell together must not in the fact of so doing be violators of the law of the land. If, however, the relationship between the appellant and the children who lived with him be such as to constitute those persons a family, then his homestead right must be recognized and enforced, notwithstanding the fact that his cohabitation with the woman was illegal; for the homestead right, existing by reason of and for the protection of the family of whomsoever composed, cannot be defeated by the fact that the head of the family permitted another person, with whom he unlawfully cohabited, to dwell on the land. Whitehead v. Tapp, 69 Mo. 415. There has been much controversy as to the relationship...