Woods v. Alvarado State Bank

• Decision Date: 29 June 1929
• Docket Number: (No. 4462.)
• Citation: 19 S.W.2d 35
• Parties: WOODS et al. v. ALVARADO STATE BANK.
• Court: Texas Supreme Court

Page 35

19 S.W.2d 35

WOODS et al. v. ALVARADO STATE BANK.

(No. 4462.)

Supreme Court of Texas.

June 29, 1929.

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

Suit by J. D. Woods and others against the Alvarado State Bank. On appeal by both parties, judgment was reversed and rendered (275 S. W. 187), and plaintiffs bring error. Reversed, and remanded with directions.

J. M. Moore and Warren & Russell, all of Cleburne, for plaintiffs in error.

E. A. Rice, of Cleburne, for defendant in error.

CURETON, C. J.

A clear statement of this case will be found in the opinion of the Court of Civil Appeals, 275 S. W. 187.

At the time of the divorce decree the plaintiff in error Woods had two minor children, who, though awarded to their mother, continued to live with him, and for the support of whom, whether living with him or not, he was at all times liable. Plainly he continued to be the head of a family, and as such entitled to all the homestead privileges and rights granted by the Constitution and laws of the state. Hall v. Fields, 81 Tex. 553, 17 S. W. 82; Speer & Goodnight v. Sykes, 102 Tex. 451, 119 S. W. 86, 132 Am. St. Rep. 896; Zapp v. Strohmeyer, 75 Tex. 638, 13 S. W. 9; Shook v. Shook (Tex. Civ. App.) 145 S. W. 682. However, in the course of time plaintiff in error's daughter, after going to her mother in Oklahoma, married there and ceased to be a constituent member of his family. The son, too, finally became of age, departed from the homestead, moved to another state, and there married. At the time of the divorce decree Woods owned 104 acres of land impressed with the homestead character, and between that date and the departure of his son, while the latter was a constituent member of his family, Woods acquired the additional land involved. Since Woods was the head of a family at the time he acquired the additional land, he was entitled to a 200-acre homestead under the Constitution, and had any levy been attempted while his children, or either of them, were constituent members of his family, the levy would have been void and of no avail. Constitution, art. 16, §§ 50, 51. The question here presented, however, is whether or not the dissolution of the family by the marriage and removal of his daughter, and the departure of his son, who had become of age, destroyed the homestead rights of the plaintiff in error, although at all times he has lived upon, occupied, and made use of the lands involved as a home, in the same manner that he had done while the children were constituent members of his family. We have reached the conclusion, upon both reason and authority, that his homestead rights were not destroyed. The question is one of first impression, although there are expressions in the opinions of this court of a definite character, made apparently after due consideration, which support our conclusion. We have found great conflict in the decisions, but on the whole have concluded that the line of authorities which holds that the dissolution of the family does not destroy the homestead rights of the surviving head, so long as he or she remains on the homestead and uses it as such, is more consistent with and applicable to the homestead sections of the Constitution and our statutory provisions than those authorities which hold to the contrary.

The rule that homestead laws are to be liberally construed to effectuate their beneficent purpose is one of general acceptation. 29 Corpus Juris, p. 787; 13 Ruling Case Law, p. 547; Trawick v. Harris, 8 Tex. 312; Schneider v. Bray, 59 Tex. 668. There are, of course, authorities to the contrary, but this court at an early date (1852) declared the rule stated to be the one applicable in this state. Trawick v. Harris, supra. Generally it may be said that there are two concepts of the effect of constitutional and statutory provisions relating to the homestead. One is that these laws confer a mere privilege of exemption, which operates to prevent the use of the process of the court to sell certain property for the payment of debts. The other is that the homestead right is considered an estate in land vested in the person designated by law. 13 Ruling Case Law, pp. 541, 542; 29 Corpus Juris, pp. 784, 785. We believe the division in the authorities on this question as to whether the homestead right is a mere privilege or an estate, roughly marks the dividing line between those which hold that the dispersal of the family destroys the homestead right and those which adhere to the doctrine that the homestead right survives the destruction of the family ensemble. There is also a division of opinion as to the purpose of homestead laws. Some authorities hold that they are enacted primarily for the benefit and protection of the family alone, and that they operate through the exemption to the head of the family for the benefit of the family as a shield against his imprudences or misfortunes; while others declare that these laws are for the protection of the individuals who compose the family, as well as the family entity itself. 13 Ruling Case Law, 543, 545. As corollaries, in part at least, from these conflicting conceptions of the effect of homestead laws, some states have adopted the rule that, since the homestead is primarily for the family only as such, when the family ceases to exist, due to any dispersal of its units, the homestead in favor of the head of the family ceases; while those which adhere to the view that the homestead is not alone for the family as a unit, but for those who compose it as well, adopt the rule that the disruption of the family by death or permanent removal of its members, except the head, does not destroy the homestead right. 29 Corpus Juris, 931, 932. In view of our constitutional and statutory provisions concerning homestead rights, we have concluded that in this state the homestead is to be regarded as an estate created not only for the protection of the family as a whole, but for the units of the family, including those who survive, and embracing the head of the family at the time of its dissolution, whether the dissolution has been brought about by death or by dispersal, as distinguished from a mere privilege accorded the head of the family for the benefit of the family as a whole.

The history of the subject in this state supports this conclusion. The first homestead law, the act of the Congress of the Republic, was a mere exemption statute, and protected the homestead and certain personal property from execution. Gammel's Laws, vol. 2, 125, 126; Hartley's Digest, art. 1270.

The homestead was exempted, along with personal property, from the writ of execution ("fieri facias"), or, in the language of the text-writer above used, in giving the two views as to the effect of homestead laws, the act of 1839 was "merely an exemption which operates to prevent the use of the process of the court to sell certain property for the payment of debts." 29 Corpus Juris, 784.

The Congress of the Republic, however, was not satisfied with a mere exemption of the property specified in the act of 1839, so, by a law passed January 9, 1843, it also exempted this property from sale for debts by the probate court, and set apart the property for "the sole use and benefit of the widow and children of the deceased." Hartley's Digest, arts. 1061, 1062. This was a distinct departure from a mere exemption statute, and certainly provided for an estate similar in purpose to the common-law estate in dower. 9 Ruling Case Law, 560; Cooley's Blackstone (3d Ed.) vol. 1, p. 128.

The first constitutional provision of Texas relating to homesteads was that of 1845, which read: "Sec. 22. 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 two thousand dollars, 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 the consent of the wife, in such manner as the Legislature may hereafter point out." Hartley's Digest, p. 73; Gammel's Laws, vol. 2, p. 1294.

It is to be noted that here Texas for the first time (apparently) separated the exemption from forced sale of personal property, by a power conferred upon the Legislature, from the homestead exemption. As to the latter, the limits were defined, and the liberty of sale on the part of the husband was restricted until the wife's consent was obtained in the manner provided by law. By this provision the land thus reserved as exempt to the owner was impressed with a vested constitutional right of the wife not only to forbid alienation, but she could with the concurrence of her husband exchange the homestead for another, or could sell and invest the proceeds in a different home. In fact, it was not merely the wife's right of possession and use which could not be sold without her consent, but the very land itself. Stallings v. Hullum, 89 Tex. 431, 432, 433, 35 S. W. 2. This constitutional provision, taken in connection with the Probate Act of 1843, setting apart exempt property for the sole use and benefit of the widow and children of the deceased, as amended, enlarged, and made effective by the Act of 1846 (Acts 1846, p. 308), had the effect of creating vested rights in the beneficiaries. Green v. Crow, 17 Tex. 180, 186. When the allowance is made to the widow and children under these acts, title becomes absolute; or, as this court has said: "In fact the estate of a widow and children, in such allowance, is as absolute as that of the widow and children to their reasonable parts by the ancient common law or custom of London." Green v. Crow, supra, 17 Tex. 188. See Cooley's Blackstone (3d Ed.) vol. 1, pp. 516, 517.

Under the constitutional provision in the organic law of 1845, which...