Rettig v. Houston West End Realty Co.

• Decision Date: 10 October 1923
• Docket Number: (No. 453-3840.)
• Parties: RETTIG et al. v. HOUSTON WEST END REALTY CO.
• Court: Texas Supreme Court

254 S.W. 765

RETTIG et al. v. HOUSTON WEST END REALTY CO.

(No. 453-3840.)

Commission of Appeals of Texas, Section A.

October 10, 1923.

Error to Court of Civil Appeals of First Supreme Judicial District.

Action between Minnie Rettig and others and the Houston West End Realty Company. Judgment favorable to Houston West End Realty Company was affirmed by the Court of Civil Appeals (241 S. W. 614), and Minnie Rettig and another bring error. Affirmed.

Maco & Minor Stewart, and R. W. Houk, all of Houston, for plaintiff in error Rettig.

Louis, Campbell & Nicholson, of Houston, for plaintiff in error Jenkins.

Andrews, Streetman, Logue & Mobley, W. H. Ward, and E. H. Vasmer, all of Houston, for defendant in error.

GERMAN, J.

Originally this suit, which was in the district court of Harris county, Tex., involved two 25-acre tracts of land and numerous parties. One of the tracts was known as the John Harris tract, and the other as the Harry Harris tract. As now before us, the case involves 7.81 acres of the John Harris tract, and the contestants are Minor Stewart and Mrs. Minnie Rettig, who will be designated plaintiffs in error, against West End Realty Company. Of the Harry Harris tract there is involved an interest of 3 acres, and the contestants for this are Minor Stewart and Mrs. Minnie Rettig, on the one hand, as against Mrs. Theresa Jenkins, on the other. In the trial court plaintiffs in error recovered nothing, and this judgment was by the Court of Civil Appeals for the First District in all things affirmed. 241 S. W. 614, 619. The facts are not now in dispute, and only three main questions are before us for determination. The facts relating to these questions will be stated in connection with each question as we consider them.

The John Harris 25 acres was acquired by John Harris and his wife, Martha Harris, in 1879, was their community property, and they used it as their homestead up to the time of the death of each of them. Martha Harris died in 1900, leaving her husband and two children, Milton Harris and Taylor Harris, surviving her. Milton Harris died in 1905, leaving a wife, his brother Taylor, and his father as his heirs. John Harris, the father of Taylor Harris, died in 1918, after this suit was filed, leaving Taylor as his only heir. With the consent of his father and mother Taylor Harris built a house on this 25 acres of land in 1879, and lived there with his wife for such time and under such conditions, as found by the trial court, as would allow him to claim a homestead right in the land, provided he could do so, as a matter of law, in view of the facts hereinafter mentioned. As to the restrictions imposed by John Harris upon the use and occupancy of the land, the trial court made the following findings:

"That after the death of Martha Harris John Harris continued to live in the old home on the John Harris tract until his (John Harris') death, and that the John Harris tract was controlled by him until his death, and that Taylor Harris occupied and used only such part of it as John Harris let him use.

"That John Harris was not willing for Taylor Harris to have enough land for him to make a living on in the John Harris tract until his (John Harris') death, and that during all his lifetime John Harris asserted that this tract was his to do as he pleased with.

"That John did not at any time allow Taylor any specific or definite tract or portion of the John Harris 25 acres, but did permit Taylor to live in the house he had built on the land."

On November 27, 1909, Taylor Harris executed a deed to John T. Tullock, conveying his interest in the John Harris 25-acre tract, but his wife did not join in this deed. It is under this deed that the West End Realty Company now holds. In November, 1918, Taylor Harris and wife executed deed to Minor Stewart to an undivided interest of 3 acres in the John Harris tract and a deed to Mrs. Rettig to an undivided interest of 5 acres in each of the two tracts. Minor Stewart and Mrs. Rettig are claiming that the deed by Taylor Harris to Tullock, made in November, 1909, was void, because the land at that time was his homestead, and his wife did not join in the conveyance. If it was not his homestead, their claim as to the John Harris tract falls.

The conclusion of law filed by the trial court with reference to the validity of the deed is pertinent, because it includes additional finding that John Harris never did at any time relinquish his homestead right in any part of the 25-acre tract, but intended his possession thereof to remain exclusive. This conclusion is as follows:

"I hold upon the findings of fact that Taylor Harris acquired no homestead interest in any part of the John Harris tract prior to his deed to Tullock, and that such deed was valid and conveyed not less than the amount of land claimed thereunder by Houston West End Realty Company, to wit, 7.81 acres, notwithstanding Taylor Harris' wife had not joined in said deed. This holding is predicated upon the constitutional provision under which John Harris, the community survivor, had the right to live upon and use as his homestead the entire 25-acre tract during the remainder of his life, and I hold as a matter of law that until John Harris relinquished this homestead right, in whole or in part, no other homestead right could attach to said land; his right under the Constitution being exclusive so long as he desired to have it remain exclusive."

Prior to 1900 Taylor Harris had no title whatever to any part of this land, and no interest in connection with it that is now of any value to plaintiffs in error. We are therefore unable to see how the rule that a tenant at sufferance, or one holding a leasehold estate in land, may claim an exemption right, can be of any benefit to them. At the death of his mother Taylor Harris inherited a one-fourth undivided interest in the land. Later he inherited a small undivided interest from his brother Milton. These interests he owned when the deed to Tullock was executed. At that time he was a tenant in common with his father, so far as title to the land was concerned, but his interest did not carry with it the right to demand partition, or to any use and possession whatever, except by the consent of his father.

Section 52 of article 16 of our Constitution provides:

"On the death of the husband or wife, or both, the homestead shall descend and vest in like manner as other real property of the deceased, and shall be governed by the same laws of descent and distribution, but it shall not be partitioned among the heirs of the deceased during the lifetime of the surviving husband or wife, or so long as the survivor may elect to use or occupy the same as a homestead, or so long as the guardian of the minor children of the deceased may be permitted, under the order of the proper court having the jurisdiction, to use and occupy the same."

Prior to the adoption of this section the title to homestead and exempt property, when set aside to the widow and minor children, vested absolutely in them, to the exclusion of the adult children. One purpose of this section was to change this rule and permit adult children to inherit an interest in the homestead property, subject to the right of the surviving husband or wife and minor children to occupy and use it as a homestead. Roots v. Robertson, 93 Tex. 372, 55 S. W. 308. The effect of this section, as applied to the present case, was to make Taylor Harris, after the death of his mother, a tenant in common with his father, so far as ownership of the land was concerned; but it did not confer on him two of the most important privileges usually held by those occupying the position of tenants in common, to wit, the right to compel a partition, and an equal right to the possession, use, and occupancy of the joint estate. It is indisputable that, so far as the right of use and occupancy of the homestead by the survivor is concerned, under this provision of the Constitution, the same is exclusive, or may be made so at will.

It is a long-established rule in our state that a homestead exemption may be established in land held by tenants in common, provided the rights of cotenants are in no manner prejudiced. However, this holding is based primarily upon the principle that each tenant in common has an equal right to the occupancy, use, and enjoyment of the estate, and may compel a partition of same. Therefore the vested interest of a tenant in common occupying the position of Taylor Harris is not sufficient to confer upon him the right to claim a homestead exemption. As we understand the rule, whatever the character of title that may be held by one claiming a homestead interest in land, to entitle him to make good such claim, such title must be accompanied by a present claim of right to occupy the land. In 21 Cyc. p. 503, it is...