Whitehead v. Nickelson

• Decision Date: 01 January 1878
• Citation: 48 Tex. 517
• Parties: W. J. WHITEHEAD v. J. L. NICKELSON ET AL.
• Court: Texas Supreme Court

48 Tex. 517

W. J. WHITEHEAD

v.J. L. NICKELSON ET AL.

Supreme Court of Texas.

1878.

APPEAL from Victoria. Tried below before the Hon. T. C. Barden.

This was an action of trespass to try title, brought by Whitehead against Nickelson.

The property sued for is a half lot in the town of Victoria, with a brick building and several outhouses upon it. It was intended for a hotel, but no hotel has been kept there of late years. Nickelson acquired the property in 1849 or 1850, and has lived upon it ever since. He first erected a wooden building, in which he lived, with his wife and children and servants, and kept hotel himself until his wife died, in 1857. After that, the hotel was kept by others; but Nickelson and his only surviving child, and a servant-woman, formerly his slave, always resided there.

In 1861, the building was burned down, and in rebuilding, Nickelson borrowed money from Fenner, and gave him a deed of trust upon the property. In 1868, Fenner sold by virtue of this deed of trust, and Shry purchased the property for $600, less than its value. Nickelson refused to surrender possession, claiming that it was his homestead. After some negotiations, Shry agreed to reconvey for $1,000. Nickelson not being able otherwise to raise the money, applied, as guardian, to the Probate Court for authority to sell some vacant lots which he had given to his daughter some years before, and to invest the proceeds in this homestead property. Authority was granted. The lots sold for $900; Nickelson raised $100. The money was paid to Shry, and he conveyed title to the minor daughter, who was then living with her father on the premises, and continued to live there with him till her marriage, in March, 1872.

On the 8th of March, 1872, the day before her marriage, she and her intended husband executed a writing, which is not skillfully drawn, but which was, in intent and effect, a relinquishment and transfer of the daughter's interest in this property to her father, to take effect upon her marriage. The next day she was married. Some two weeks afterwards, (March 26,) she and her husband executed to Nickelson a conveyance for the property, reciting that they did it ““in accordance with former signatures,” referring to and confirming the writing of March 8.

In 1869, or early in 1870, and while Nickelson and his daughter, and “the freedwoman,” who was old and sickly, but who lived with Nickelson after emancipation, as before, were residing on the premises as a family, a Miss Moncrieff, of Georgia, the daughter of Nickelson's first cousin, wrote to him, and asked him whether she could have a home in his family, as her father was dead, and she no longer had any home in Georgia. She also asked permission to bring with her a little girl, a niece, some two years old. Nickelson consulted with his daughter, and she consenting, he wrote to Miss Moncrieff to come. She came, bringing with her the child, and both remained there till the fall of 1873, when she left, for the purpose of being married. Nickelson testified that she came there to be a member of his family, and to remain as long as he lived or she lived. The testimony in the case tends to show that she was there as a daughter would have been, working, managing, and superintending for the benefit of the family, while Nickelson supplied her, as he did his daughter, with shelter, medical attention, and part of her clothing.

April 15, 1872, Whitehead obtained a judgment against Nickelson, in the District Court of Victoria county, for $1,400. On this judgment, execution was issued 13th of May, 1872, under which the lot in controversy was sold on the first Tuesday in July, and Whitehead became the purchaser.

Upon these facts, verdict was returned, and judgment rendered for defendant; and Whitehead appealed.

Philips, Lackey & Stayton, for appellant.--It was contended, in the District Court, that the fact that the property had been the homestead of his family prior to the sale under the deed in trust to Fenner, affected the question as to whether or not the property was the homestead of the appellee at the time appellant bought at the sheriff's sale; and the court seems to have been of that opinion. The appellee, as he could legally do, parted with all his title in the property, when it was sold under the Fenner deed in trust, and Shry became the purchaser; and if he had not, he would not now be heard to say that his daughter did not get perfect title when he bought the property as her guardian, for her, and did so under an order from the Probate Court, made at his request, and by which he was empowered to sell the property of his ward to raise money for that purpose.

With the loss of his title, all of his prior homestead rights, as did all his other rights therein, ceased to exist.

In the absence of title, there was nothing to support the homestead claim or right, and we are not aware that when the title to the property in which homestead rights have once existed is lost, that there still exists a slumbering dormant right, or capacity, which lives without something to feed upon, and which in case of a reacquirement of the title will reattach and support the homestead exemption, in the absence of the same surroundings which, under the law, were requisite in the first instance to create and maintain that right.

When the appellee reacquired the title, on the 26th of March, 1872, he stood, with reference to his right to the homestead exemption in this property, just as he would have stood if he had acquired by purchase a lot which had never before been his property; otherwise, the doctrine would be, “once a homestead always a homestead,”--and this without reference to continuous ownership in the same person, and without reference to the existence of a family, which is necessary in the first instance to create the exemption.

The Constitution protects that which is the homestead of the family at the time the creditor seeks to subject it to forced sale,--not that which may have been the homestead at some former time, by reason of the existence of facts which then made it, within the meaning of the law, the homestead of the family, but which have now ceased to exist. The Constitution, in exempting homesteads, humanely looks to the protection of families, and to that object alone.

It was contended, in the District Court, that notwithstanding the appellee had parted with all title in the property, and consequently with all rights growing out of his former ownership, yet that the fact that he was a widower, and had once had a homestead in the property, entitled him to a homestead exemption therein, which a bachelor with the same surroundings would not have been entitled to; that the fact that he had once had a wife and child, while he owned and occupied the property as a homestead, stamped upon him the full character and all the elements of a family, and upon the property in question a homestead character from which it could not escape at any time, while he was the owner thereof,--and this notwithstanding he might sell and reacquire it ever so often.

Can the fact that the property in controversy possibly may have been the homestead of a family while it was owned by his daughter, relieve the appellee from the necessity of showing, by proof, that he was so surrounded after the marriage of the daughter as to constitute him, without reference to his daughter, the head, or at least a member, of such an assemblage of persons as the law recognizes as a family? We think not. If the property was exempt while it was owned by her, it was an exemption in her favor, and based upon her title, and not upon any dormant right existing in the appellee, from the fact that it had once been his property and homestead, and that she had been at one time a member of his family while it was thus exempted.

The daughter ceased to be a member of the family of which her father was a member the moment she married; and the act which made her a member of another family did not incorporate him with the new family; nor could he claim any right from the existence of a family of which he was not a member. The daughter and her husband are not setting up any rights in the property; nor can they, for they have parted with their title.

Both title and such occupation as the law contemplates must concur and exist in the same person, or there cannot be any homestead exemption.

The residence of the daughter upon the property while she owned it, even if her father did live with her during the time, cannot relieve him from the necessity of showing, that, after he acquired the property from his daughter, he had living with him such an assemblage of persons as, within the meaning of the law, constituted a family.

We are aware of the great difficulty of determining, by any fixed and well-defined rules and principles, what kind of an assemblage of persons living together will, within the meaning of the law exempting the homestead from forced sale, constitute a family, and in looking to decisions made in other States upon similar laws we derive but little assistance; yet it is a matter which must be determined by a fixed rule or principle, however hard it may be to apply the rule to cases as they arise. It will not do to say that each case must stand or fall upon the facts, without reference to a fixed principle.

The leading idea in the Constitution, in reference to the homestead exemption, was doubtless to secure to such persons as constitute a family, in contradistinction to single persons, a home, and to foster and upbuild the family interests, upon which, mainly, society depends.

We cannot disassociate the idea of a family from the idea of an assemblage of persons among whom some are dependents, over whom some other one or more of their number have and legally exercise control.

And we submit, that to constitute a “family,” within the meaning of the Constitution, there must be a state of dependence in law, if not in fact,...