Miller v. Widow & Heirs of Menke

• Decision Date: 31 January 1881
• Docket Number: Case No. 1319.
• Citation: 56 Tex. 539
• Parties: H. MILLER, ASSIGNEE, v. THE WIDOW AND HEIRS OF THEODORE MENKE.
• Court: Texas Supreme Court

56 Tex. 539

H. MILLER, ASSIGNEE,

v.THE WIDOW AND HEIRS OF THEODORE MENKE.

Case No. 1319.

Supreme Court of Texas.

January term, 1881.

NOTE. The record in this case was destroyed by fire at Galveston, and the statement of the case is taken from appellant's brief, the correctness of which was admitted. The importance of the question involved will explain the liberal extracts made from the briefs.

APPEAL from Austin county.

H. Miller was appointed assignee of the estate of Theodore Menke (since deceased), by deed of assignment for the benefit of creditors, made December 2, 1880, conveying to him all the property of Menke not exempt from forced sale under the constitution and laws of the state. He sued to subject lots 4 and 5, in block F, in the town of Belleville, Austin county, as assets of the estate conveyed to him by the assignment, for the purpose of distribution among the creditors of Menke. The surviving wife and child of Menke claimed the property as homestead. The judgment of the district court was in their favor as follows: “The said lots 4 and 5, in block F, in the town of Belleville, together with the improvements thereon, are, under the constitution and laws of Texas, a part of the homestead of the said Theodore Menke, and were such at the date of the assignment on, to wit, December 2, 1880, and as such did not pass to and vest in the assignee, H. Miller, by virtue of said assignment, and that the same belongs to the family of said Theodore Menke, now deceased, as a part of the homestead of said decedent.”

From this judgment Miller appealed.

Theodore Menke, at the time of making the assignment, and at the time of his death, was a married man and the head of a family, having his residence and place of business in the town of Belleville, Austin county. Belleville is regularly laid off into blocks and lots. At the date of the assignment, and for several years previous, Menke owned lots 4 and 5, fronting on the public or court house square, and did business as a merchant in a store situated on the same. During this time, and at the date of his death, Menke owned and resided with his family on out-lots 2 and 3, in the town of Belleville, some eighty or ninety yards from the court house square, on a street leading thereto and entirely disconnected from the store-house lots; said residence lots containing a garden, stable, and other usual appendages of a dwelling. Shortly before making the assignment Menke erected a brick store on the lots 4 and 5, in close proximity to the store he was then using; and after the completion of the brick building he transferred his business and most of his goods into it, and was doing business there at the date of the assignment and for several weeks previous. A portion of the goods were left in the old store, and it continued to be used as a warehouse in connection with the new store up to the date of the assignment. The old and new buildings each cover portions of both lots.

Menke's sole business was that of a merchant, and was conducted entirely on said lots 4 and 5.

His residence above named was used for the purpose of a home for himself and family.

All of the lots of ground mentioned always have been, without reference to the value of improvements, of less value than $5,000.

The following plot shows the relative location of the lots:

TABULAR OR GRAPHIC MATERIAL SET AT THIS POINT IS NOT DISPLAYABLE TABLE

The question involved was: Whether lots 4 and 5, in block F, constitute a part of the homestead of Theodore Menke and family under the provisions of sec. 51, art. XVI of the constitution.

Street & Kleberg, for appellant.

The first proviso in sec. 51, art. XVI of the constitution, defining the homestead of a family in a town, village or city, in the words following: “““ provided, that the same shall be used for the purpose of a home, or as a place to exercise the calling or business of the head of a family,” neither restricts or enlarges the homestead exemption of “lot or lots, not to exceed in value $5,000 at the time of their designation as homestead, without reference to the value of any improvements thereon,” but requires (subject to the qualification as to temporary renting in the second proviso) that use either as a home or as a place of business shall alone constitute designation within the meaning of the constitution.

It prescribes, disjunctively, alternative conditions or status of the subject matter, one or the other of which must exist.

Subject to the qualification as to temporary renting, there can be no homestead unless the same shall be “used for the purposes of a home, or as a place to exercise the calling or business of the head of a family.”

The exemption is not of a home and a place of business, but of a homestead to consist of lot or lots, which may be used for either purpose and must be used for one or the other.

The language used is appropriate to convey this intention and no other.

The designation required under this proviso will be found to be one of the most important, if not the most important, distinction between the homestead provision of the present and former constitutions.

The constitution of 1845, so far as applicable to the character of case under consideration, reads: “The homestead of a family _______ any town or city lot or lots in value not to exceed,” etc. In the constitution of 1870 it was sought to make the exemption more definite, more easily susceptible of ascertainment, by adding after “in value not to exceed,” etc., the words, “at the time of their destination as a homestead, and without reference to the value of any improvements thereon.”

It was still, however, thought reasonable ground of complaint that the terms of the constitution failed to prescribe the indicia of homestead, and left so important an element vexata questio.

The convention of 1876, responding to this demand, has declared that designation shall be by one or the other of certain uses named; and in so doing it has wisely imported into the terms of the law the interpretation which previous constitutional provisions of the same general character had received from our supreme court in a long line of cases--an interpretation with which the professional mind was already becoming familiar, and one not intended now to be remitted to the realm of uncertainty but definitively to be perpetuated by express constitutional sanction.

In Hancock v. Morgan, 17 Tex., 585, the exempt homestead was only a single town lot of less value than $2,000.

In Pryor v. Stone, 19 Tex., 371,“the only property sold was the one lot on the public square,” and the court say, “one room was occupied by the plaintiff (head of the family) as his bed-room; the depository of family portraits and remaining furniture. To this extent it was his actual residence, and its claim, as such, to exemption cannot be questioned.”

In Evans v. Womack, 48 Tex., 230, the eleven acres claimed as a part of the homestead were situated in the town with the residence lot, separated therefrom by intervening streets and lots, as in this case, and were cultivated. The court say: “This did not make it a part of the homestead, … though had it been a garden, or horse-lot, used in connection with the residence, as such appendages are commonly used in a town, its separation from the residence by a street would not have prevented it from being a part of the homestead.”

The principle of the case of Iken & Co. v. Olenick, 42 Tex., 195, is applicable to, and decisive of, the case at bar in favor of appellant.

Chesley & Haggerty, for appellees.

The point to be arrived at is the intention of the framers of the constitution.

In Pryor v. Stone, 19 Tex., 371, the court say the homestead exemption includes a place where the head or members may pursue such business as may be necessary for the support of the family.

This principle was repeatedly referred to with approval by this court in subsequent decisions, and came to be regarded by the profession as settled law. Moore v. Whitis, 30 Tex., 440;Ragland v. Rogers, 34 Tex., 617.

In 1875 the opinion of this court in the case of Iken & Co. v. Olenick was rendered, holding that all questions of this character were to be determined by the use to which the property in question was applied; that is, if it was the lot or lots upon which was the residence or mansion house, or if by its contiguity or use it contributed to the convenience or enjoyment of the mansion, then it formed a part of the homestead, otherwise not. 42 Tex., 201.

This decision, although based upon what we believe to be sound reasoning, dispelled the idea prevailing at that time in the mind of the people of Texas, that the place of business of a head of a family formed a part of his homestead.

In the following year, the constitutional convention assembled and changed the homestead provisions upon this point and no other, by adding the proviso, that “the same (the urban homestead) shall be used for the purpose of a home, or a place to exercise the calling or business of a head of a family.”

This court had already decided (Iken & Co. v. Olenick) that the question of whether an urban lot formed a part of the homestead was to be determined by the use to which it was applied, and that the concrete idea of homestead did not include anything except the residence and such of its surroundings as from their use or contiguity were necessary to its enjoyment.

The first part of the constitutional proviso, viz., “that the same shall be used for the purposes of a home,” expresses exactly the result of this decision, and then the proviso proceeds by adding, “or as a place to exercise the calling or business of the head of a family,” thereby indicating, as we submit, an intention to make the constitutional homestead the same it had been generally understood to be during the period of about eighteen years from the time of the decision of Pryor v. Stone, down to the time of the decision of Iken & Co. v. Olenick.

This court has...