Wilson v. Cochran

• Decision Date: 31 January 1869
• Citation: Wilson v. Cochran, 31 Tex. 677 (Tex. 1869)
• Parties: ALEXANDER WILSON v. JOHN L. COCHRAN ET AL.
• Court: Texas Supreme Court

31 Tex. 677

ALEXANDER WILSON

v.JOHN L. COCHRAN ET AL.

Supreme Court of Texas.

January, 1869.

The 22d section of the VIIth article of the constitutions of 1845 and 1866 reads as follows: “The legislature shall have power to protect by law from forced sale a certain portion of the property of all heads of families. The homestead of a family, not to exceed two hundred acres of land (not included in a town or city), or any town or city lot or lots in value not to exceed $2,000, shall not be subject to forced sale for any debts hereafter contracted, nor shall the owner, if a married man, be at liberty to alienate the same, unless by consent of the wife, in such manner as the legislature may hereafter point out.”¹ Pas. Dig. pp. 65-941. This protection requires no aid from the legislature. It is against all invasion by our legal process.

The homestead is the sanctuary of the family; not merely of the head, but of all its members, whether consisting of husband, wife and children, or any other combination of human beings, living together in a common interest and having a common object in their pursuits and occupations.

If the property belong to one or all of the family so living together, it is not subject to forced sale.

Family” is used in its comprehensive sense, and embraces a collective body of persons, living together in one house, or within a curtilage, in legal phrase. It embraces the household, composed of parents and children, or other relations, or domestics and servants.

A single man, who had sometimes occupied a house and lot as a sleeping place, never having servants or any person connected with him residing on it, and who had rented out the place when the execution was levied, had no claim as a family, and the property was subject to forced sale. 19 Tex. 371;23 Tex. 498;24 Tex. 224.

APPEAL from Brazoria. The case was tried before Hon. BENJAMIN SHROPSHIRE, one of the district judges.

The facts are sufficiently stated in the opinion of the court.

Eugene Wilson, for appellant, relied upon Philleo v. Smalley, 23 Tex. 302; Franklin v. Coffee, 18 Tex. 417.

Lathrop & McCormick, for appellee.

LINDSAY, J.

A judgment having been recovered against the appellant by John L. Cochran, at the spring term, 1867, of the district court of Brazoria county, an execution issued thereon, and was levied upon four town lots, and the improvements, in the town of Brazoria. The appellant sued out a writ of injunction against the execution, alleging, in his petition to obtain it, that the lots and improvements were his homestead, and did not exceed in value the sum of $2,000. In his petition the sheriff alone was made a party defendant in the suit. The plaintiff in the execution who ought also to have been made a defendant, without citation, appeared and made himself a party defendant, and was, in fact, the real party in interest. He filed his answer, denying that the property levied on was the homestead of the appellant.

The demurrers, both to the petition and the answer, became unimportant in the case, as there was an issue of fact finally made, upon the question of the homestead, for the determination of the court. The allegations of the petition, if unqualified and uncontradicted by counter-statements, were sufficient to authorize the granting of the injunction. Those allegations were, however, traversed by the answer, and made an issue of fact, to be determined by the evidence on the hearing of the motion to dissolve the injunction. The simple issue is, was it a homestead in fact, within the meaning of the constitution of the state?

The facts are, substantially, that the appellant acquired the property by devise, in the year 1855; that there was a house upon one of the lots at the time of the acquisition; that the appellant occupied it as a sleeping apartment, or dormitory, from 1855 to 1865; that he erected a new house thereon in 1866, designing it as his dwelling and furnishing it as such, building a kitchen, putting up a cooking-stove, etc., and intending to occupy it as a dwelling; that he leased out the premises since the year...