Taylor v. Boulware

• Decision Date: 01 January 1856
• Citation: 17 Tex. 74
• Parties: SAMUEL J. TAYLOR v. OLIVER T. BOULWARE.
• Court: Texas Supreme Court

17 Tex. 74

SAMUEL J. TAYLOR

v.OLIVER T. BOULWARE.

Supreme Court of Texas.

1856.

Where a man and wife acquired a homestead, and the wife died, and there were no children, but the husband continued to occupy the premises as before, with his slaves, hirelings and a niece and her husband, who came to live with him after the wife's death, it was held that the homestead right continued under the constitution.

A temporary absence, without any proof of intention to change residence, does not amount to an abandonment of a homestead.

We are not disposed to question the power of the legislature to extend the limits of the corporation of the town of Marshall; nor to question, that after the plan or plot of the town has been extended, corresponding with the boundaries so authorized to be extended, a homestead falling within such extension, though acquired before it was done, would become subject to the limitations prescribed by the constitution to a town homestead.

Where the limits of a town are extended by act of the legislature so as to include a country homestead, the latter does not thereby immediately become a town homestead; not until the plan or plot of the town is extended accordingly, either by buildings, or by the survey, or at least an ordinance establishing streets, etc.

Appeal from Harrison. Tried below before the Hon. William W. Morris.

Trespass to try title, brought by appellee against appellant, for a tract containing sixty-six and 58-100 acres, described as about three-quarters of a mile northeast from the center of the public square of the town of Marshall.

The plaintiff had purchased the land in controversy in 1848, and not finding a suitable building place upon it, purchased five or six acres adjoining, in the direction of the town. Here he built his dwelling house and principal improvements; but the horse lot, slaughter pen, corn crib, brick yard, part of the negro houses and branch of water for every day use of the family were on the land in controversy. From this time on the plaintiff occupied and cultivated both tracts as his homestead; no part of the land being within the limits of the town. In 1850 his wife died; had no children. Plaintiff continued to occupy and cultivate the land as before, with his negroes. A Mr. McAlister and his wife, the latter a niece of the plaintiff, lived with him from the early part of 1851, having no other home, using his furniture, eating at his table, as a part of his family (in the language of the witness). In July, 1851, the plaintiff went to Mexico and did not return until the spring of 1852; when he left he stated that he was going to South Carolina. He, however, left everything to go on, and everything did go on, just the same as when he was at home; and there was no evidence of any intention to change his residence.

The defendant claimed by purchase at sheriff sale, made on the 6th February, 1852, under executions issued on judgments recovered against the present plaintiff, at the spring term, 1851, of Harrison district court, paying therefor at the rate of $8.10 per acre. McAlister was present at the sale and forbid it, claiming the land as the homestead of the plaintiff. On the 11th day of February, 1850, an act of the legislature, entitled an act to incorporate the town of Marshall, was passed, in which the limits of the town were defined to be one mile square, of which the courthouse of the county of Harrison should be the center. It was proved that the limits thus defined included all of the second purchase on which the dwelling house stood, and which was not in controversy, and in addition thereto about three acres and a quarter of the first purchase, the same to recover which the suit was brought. The negro houses and crib, described as on the land in controversy, were on these three and a quarter acres; they being in the same inclosure with the homestead. Both tracts of land, considered as one, came to a sharp angle towards the town; the dwelling house stood immediately within the point. It was proved that the land was all cleared up but an acre or two. Witnesses who appeared from the statement of facts to speak in the present tense, proved the value of the land and improvements within the town limits, to be from fifteen hundred to two thousand dollars. There was no evidence directly to the point, whether the town of Marshall had passed any ordinances respecting streets; nor as to how near to the property in controversy the houses of the town approached; but it was apparent from the general course of the testimony that the limits of the town had not been surveyed and marked, and that the house of the plaintiff was beyond the body of the houses. No point was made below on this subject.

The judge charged the jury that the term family means a collection of persons living at or in the same mansion, having a common governor or head, on whom they are in some way dependent, and by whom they are provided for and controlled; and that the fact that all of such persons except the owner are slaves, does not alter the question; and that where a homestead of two hundred acres, or less, in the country, is once acquired, the extension of town limits over part of it would not curtail the right.

The defendant asked the judge to charge the jury, that if the plaintiff had no wife, child or ward, at the time of the levy and sale, he was not the head of a family.

That if the land sued for adjoined the corporate limits of the town of Marshall, and the premises where the plaintiff lived were within the...