Tanton v. State Nat. Bank of El Paso, Tex., 6157.

• Decision Date: 13 March 1935
• Docket Number: No. 6157.,6157.
• Parties: TANTON et ux. v. STATE NAT. BANK OF EL PASO, TEX., et al.
• Court: Texas Supreme Court

79 S.W.2d 833

TANTON et ux. v. STATE NAT. BANK OF EL PASO, TEX., et al.

No. 6157.

Supreme Court of Texas.

March 13, 1935.

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

Suit by Nathan W. Tanton and wife against the State National Bank of El Paso, Texas, independent executor, and others. Judgment adverse to plaintiffs was affirmed by the Court of Civil Appeals [43 S.W.(2d) 957], and plaintiffs bring error.

Judgment of Court of Civil Appeals affirmed.

Wilchar & Worrell and Gowan Jones, all of El Paso, for plaintiffs in error.

McKenzie, Walthall & Gamble, John T. Hill, and O. R. Armstrong, all of El Paso, for defendants in error.

CURETON, Chief Justice.

This case is fully stated in the opinion of the Court of Civil Appeals , and we deem it unnecessary to here restate it.

We granted a writ of error with the notation that we would hear the case. In doing so we had in mind the conflict stated in the application between the opinion of the Court of Civil Appeals in the instant case and that in the case of Dorough v. Panse, 24 S.W.(2d) 69. In the last-named case the Court of Civil Appeals for the Sixth District (Texarkana) held that land which had become a homestead because of the existence of the marital relation, and exempt as such from the payment of community debts, did not lose its exempt character by reason of a subsequent divorce; basing its opinion upon the case of Woods v. Alvarado State Bank, 118 Tex. 586, 19 S.W.(2d) 35, opinion by this court.

After a very careful consideration of the questions involved, we have reached the conclusion that the opinion of the Court of Civil Appeals in the instant case is correct.

In the case of Woods v. Alvarado State Bank, Woods was entitled to a homestead because after the divorce from his wife he remained the head of a family composed of himself and minor children. The question as to whether or not he would have been entitled to the homestead exemption after the divorce decree was entered, had he not continued as the head of a family, was not before the court, and was not decided. In fact, we expressly stated in the opinion that the question decided in Bahn v. Starcke, 89 Tex. 203, 34 S. W. 103, 59 Am. St. Rep. 40, was a different one to that presented by the Woods Case.

In the instant case the Court of Civil Appeals followed the case of Bahn v. Starcke, and in this we think the court was correct. Bahn v. Starcke, 89 Tex. 203, 34 S. W. 103, 59 Am. St. Rep. 40; Comstock v. Lomax, 135 S. W. 185 (writ refused); Floyd County v. Wolfe, 138 Iowa, 749, 117 N. W. 32; Shoemake v. Chalfant, 47 Cal. 432; Stahl v. Stahl, 114 Ill. 375, 2 N. E. 160; Brady v. Kreuger, 8 S. D. 464, 66 N. W. 1083, 59 Am. St. Rep. 771; Kern v. Field, 68 Minn. 317, 71 N. W. 393, 64 Am. St. Rep. 479; Boykin v. Rain, 28 Ala. 332, 65 Am. Dec. 349, and monographic note page 358. In the Bahn Case, decided in 1896, this court, in an opinion by Chief Justice Gaines, held that where a man and wife, having no children, were divorced, the divorce destroyed the particular family the existence of which gave the homestead right, and that the property was, therefore, not a homestead, and was subject to execution. It is quite unnecessary to discuss fully the reasons for the rule, or to here state at length that which may have actuated the court in announcing it. Bahn v. Starcke was decided nearly forty years ago, and, in so far as we know, has neither been modified nor overruled. Many sessions of the Legislature have met since the decision, and the statutes have twice been codified. Neither the statute law nor the constitutional provision has been changed since the decision. In fact, it may be said that the law as announced in Bahn v. Starcke has become a rule of property in this state, and should not be changed in the absence of other controlling circumstances, even though good reasons might be given for a different holding. 15 Michie's Texas Digest, pp. 861, 862, 863, 864; Johnson v. Harrison, 48 Tex. 257, 267; Adams v. Bateman & Bro., 88 Tex. 130, 133, 30 S. W. 855; McKeen v. James, 87 Tex. 193, 200, 25 S. W. 408, 27 S. W. 59; Whitmire v. May, 96 Tex. 317, 72 S. W. 375; Dean v. Gibson (Tex. Civ. App.) 48 S. W. 57; 7 Ruling Case Law, p. 1000, §§ 29, 30. However, we think the rule as announced in Bahn v. Starcke a sound one. The homestead exemption in that case, as in the case before us, was due wholly to the existence of the marriage relation. The relationship was not dissolved by death, nor was the family dispersed in the usual course of nature by the children departing from the parental roof and establishing homes of...