Axer v. Bassett

63 Tex. 545 | Tex. | 1885

Delany, J. Com. App.

We will consider first the question whether the homestead claim of Axer and wife ought to be sustained; for if that is a valid claim, the whole case is at an end. Under all our state constitutions the homestead might consist of more lots than one; that is, the family might live on a lot or lots, and that fact of itself would make that lot or those lots the homestead. But beyond this he may so use another piece of ground as to invest it with the homestead character. The term “lot ” has no definite meaning as to the size of the piece of ground. It may be twenty feet by forty or it may be two acres. The words “ used for the purposes of a home,” which occur in our present constitution (art. 16, sec. 51), did not occur in those which preceded it. The words occurred very often in the discussions of the courts, but they generally referred to lots other than those on which the family lived.

The fact that a lot is made by a family a place of permanent residence constitutes that lot a home or homestead; that is, such residence is of itself a using of that lot for the purposes of a home. To say of that lot that it shall be the homestead, provided it is used for the purposes of a home, is equivalent to saying that it shall be the homestead provided it is the homestead.. There appears, therefore, to be a slight incongruity in the language of the present constitution.

Whether or not it will lead to inconvenience, time will have to determine. But when we come to speak of lots other than that of the residence, the words “ used for the purposes of a home ” are very appropriate. For, as to these lots, their character, whether homestead or not, must be determined by their use. Thus it has long been held that the mere ownership of a vacant lot, unconnected with the residence lot, will not make it part of the homestead. Methery v. Walker, 17 Tex., 593.

Hor could a lot unconnected with the residence lot be made a part of the homestead by being used for the purpose of providing a revenue, even though that revenue were used for the support of the family. Evans v. Womack, 48 Tex., 230. But if the lot were constantly used in connection with the residence lot, and in such a way as to add materially to the convenience and comfort of the home, our opinion is that its separation from the residence lot would not necessarily divest it of its character as a part of the homestead. How, this lot was a very short distance from the stable of the family. They had several domestic animals — cows, horses, etc.

Ever since 1872, when this lot was bought, it had been used by the family as a sort of pasture lot for these animals. We think this was such a use as would prima facie make it a part of the homestead. The fact that Axer placed on the lot a building, and used it for. some years as a tannery, or a broom factory, would not, we think, alter the case.

■ Our opinion is that the judgment should be reversed, and that such judgment should be rendered here as should have been rendered below; that is, judgment for the defendants Axer and wife.

Reversed and rendered.

[Opinion adopted March 20, 1885.]