*1 al., BURK COMPANY ROYALTY et Petitioners, al., Respondents.
Billie Rae RILEY et
No. B-2681.
Supreme Texas.
Jan. 1972.
Rehearing Denied Feb. *2 Watson, Sanders, maining in that home for W. her children Masters & H. with Smart, weeks, Falls, McMahon, on Sanders, a few she married A. Wichita James 16, Stephen occupied not the July H. She has Camp, 1963. Sprain, Wilson & Leggett property Abilene, Royal- Drive since the Suttle, petitioner, Burk for Riley, occupied it. to he has never and ty Co. trial, ensuing years prior the the seven to Leonard, Alvis, & Wagstaff, Alvis Riley family consisting the of and James Alvis, Abilene, petitioner, for Robert H. daughter, Billie and her have Rae lived Abilene. Citizens National Bank in duty subsequent where Air his Force and him, jobs taken from have Louisiana to Rutledge, Rutledge, M. Rutledge & R. finally Greece and as of the to San Antonio R. Niedecken, City Atty., Edward Ben date of Ford, trial. Atty., Paynter, Robert E. Dist.
Abilene, respondents. for prop- vacated the When husband, Harris,
erty, her George former interest, as owner of the other one-half took REAVLEY, Justice. kept control. He has at times since it in all repair, tenants, obtained taken the and Disposition case turns of this rent. exemption an a for the status homestead of by a property in owned interest urban Burk against Harris this suit instituted on with woman remained who Company cloud of a Royalty to remove but who her minor children after divorce Leggett Drive judgment lien from the her live then remarried and moved to property. Mr. Harris It was the desire of against new trial found husband. The court property, to and and Mrs. sell exemption and the claimed homestead do had unsuccess- efforts to so lien claim judgment rendered in favor of Harris ful of the recorded liens. because priorities. ants the order of their in his interest pleadings contended his that the cause appeals court of civil remanded exemption. protected was finding for the reason that that wife, Billie impleaded his Rae He former was woman had abandoned her homestead Riley, present her husband. Citi- and against great weight preponder and in Abilene intervened zens National Bank ance 426. We of evidence. 464 S.W.2d sought of a mechanic’s and foreclosure hold that after new was created property. against the lien and of trust deed remarriage, no homestead was parties taxing units also made Local were apart ab family, from new and in the suit, they sought of to the as foreclosure of evidence that sence this judg- The trial court rendered tax liens. homestead of of the new Only Billie for lien claimants. ment exemption fails. appealed, Harris and George Rae and the fore- complaint limited to their and Billie Rae Harris George D. Harris Royalty in of closure of liens favor Burk Leggett property, at 917 made the contested court of Bank. The and Citizens National Abilene, City their home of Drive in appeals appeal of against civil Royalty and in Burk 1952. Billie a new trial but ordered against judgment Company obtained Riley. Rae for record Harris and filed the abstract accepted judgment below Harris has in Rae Harris and Billie George Riley has made di- and is not before us. divorced on 1963. The were June no contention as to custody to vorce decree awarded ap- testimony, he by pleading nor has or daughter interest and one-half judgment. court’s pealed from trial also award- Leggett Drive home. She was here, claiming that Only Riley is home ed use and exempt from her interest re- remarry. long as she After did exemption foreclosure because her entitled sale former were forced protection only Leggett continued this date. Her on the homestead Drive as testimony July as to her remar- if intention after 1963. Even va- riage say premises time, was to would cated the if the have returned to she had the retention if of their *3 litigated, known that decree did not for- stead had the divorce been doing pointed bid them from a would enjoyed presumption so. She have paragraph by in a letter written the trial the homestead continued and a lien holder judge during pendency of the Harris would proving face the burden intent judge divorce right family where said that her as head of the to abandon it. upon remarriage. terminated He re-marries, wrote: “If she it would be that a presumed It is sold money and the divided.” home of the only if the existence continues initial burden for the proved, is first stead appeals decided The court of civil exemp upon person who claims assumption that the lien claim- case on the in Lub First Bank Campbell v. Nat. tion. required prove Billie Rae ants were bock, (Tex.Civ.App.1935, 88 1084 S.W.2d totally Riley voluntarily abandoned and of her threshold ref’d). At this initial writ returning, with the intention of case, She cannot Billie Rae fails. holding and based Rancho Oil was by family prove a homestead for the Powell, 63, v. 175 960 Co. 142 Tex. S.W.2d of a showing the existence in this re- (1943). There is a difference family. of the Plarris spect between the homestead of a widow and divorces the homestead of a wife who and the provides, The Constitution
and remarries.
Co.
Powell
Rancho Oil
v.
protection
emphasized, the
decisions have
by
of Article
determined
52
Section
exemp
Constitution,
family
purpose
of the
as the
16 of the Texas
Vernon’s
84,
Linares,
v.
93 Tex.
tion. Linares
De
protects
the widow’s
Ann.St.
Starcke, 89
(1899);
53
Bahn v.
occupies
S.W. 579
long
stead
as she uses or
203,
(1896);
Tex.
34
103
Whitehead
provision
S.W.
the land.
52 makes no
Section
Nickelson,
v.
Starcke,
Davis
(1878);
v.
Bank of
v.
169 S.W.2d
Hubbard
ref’d); Steves
(Tex.Civ.App.1943,
735
writ
family
con
homestead of
126,
Smith,
Tex.Civ.App.
107 S.W.
v.
49
sisting only of
and
is ter
wife
ref’d).
(Tex.Civ.App.1908,
141
writ
irrespective
minated
of inten
divorce —
family
occupancy.
tion or
is no
Since there
thereafter,
family
there
no
ex
can be
it was
In the
James
emption under
Tanton
Texas law.
v. State
who determined the
Paso,
16,
Riley,
National Bank of El
125
Tex.
79
which included
However,
(1935).
exemp
S.W.2d 833
only
to which she
this was the
protect
tion does
a constituent unit of the
intent to
belonged.
matter
then
family which remains
in
after
for herself
home
or abandon a homestead
Hand,
the divorce. Woods v. Alvarado State
longer
was no
decisive. Duncan v.
Bank,
586,
writ).
Tex.
(1929).
118
S.W.2d
(Tex.Civ.App.1905,
19
no
35
abode with him in his urban at ap- of civil of the court judgment The Perryton. the judgment of peals the is reversed and Walter ownership Perryton Bowen’s of the trial court is affirmed.
home was question relevant to the of what
he had chosen to be the home for the new STEAKLEY, (dissenting). not, family; but whether owned or the Justice home was located him and no homestead deny would apparently majority The could be designated or retained otherwise. family the Harris of that the homestead D. George of divorce the after continued It should not be said at this date Harris, lat- the with Rae and Billie Harris that the can wife never be the head of a her continued head, of by reason ter as its family and entitled to designate family the her the of homestead. generally, Anno., See Wife as Bank, State Alvarado See Woods child. Family Head of Within Homestead or The (1929). 35 19 S.W.2d Property Other Exemption Provision, 67 de- homestead holding that is A.L.R.2d (1959). Though 789 times mar- later of the because upon and stroyed may change frequency the with which the A. to Rae Harris riage of Billie presumption traditional may overcome be it was notwithstanding that is Riley. This by the particular family, circumstances of a lienhold- the nor claimed shown neither presumption the that is of the head as ers that head of family a continues. is no There estab- elsewhere or otherwise family had present case but that James reasons majority a homestead. lished A. is the head of Riley family. of continuing existence of the claim that the because fails We make no decision as to whether the homestead family the Harris apart exemption homestead no homestead Leggett Drive be can Riley family. widowhood, This would not her upon be if right family surviving head of the the divorce to homestead dis terminated were the marriage. of their husband. solution childless prior right homestead The claim of Billie Rae Riley is that during marriage continued second of the of she was its Haw after dissolution. See also Re through the head continued thorne, F.Supp. (N.D.Tex.1942). to until abandoned or otherwise dis- acknowledge appear Petitioners placed by Riley family. court civil remand ordered not, asserts, majority She is as the under- appeals to try the of abandonment issue taking “prove if must stand it is held that the homestead family by showing the existence exemption remarriage survived the family.” the Harris She judgment. Rae Harris. would affirm this I is not claiming a homestead interest The exist- Riley family. for the ing homestead of the Billie presumed I to continue and would particular it
hold under the facts here that it displaced
was not since not shown *5 a homestead for established comports family. This the liberal KIRK, Petitioner, Harvey H. given traditionally construction our
stead laws. v. STANDARD LIFE AND IN ACCIDENT Domnan, v. Kirkwood COMPANY, Respondent. SURANCE problem (1891) decided a related
S.W. No. B-2745. in the context of divorced residing upon wife who was Supreme of Texas. marriage and of the former main Jan. taining marriage. the minor children community in which the first owned a one-half husband divorce,
interest. After the husband deed
executed a of trust to his
under it sold which was thereafter
creditor, brought partition. suit for who events,
speaking of the after these situation
it the wife was stated the Court that e.,
“having the first [i.
marriage] interest had a homestead
one that was half of the undivided her; pro interest was and that
owned e., after the
tected from sale.” forced [i. Chamlee, marriage] second In Chamlee 1938, no 290 (Tex.Civ.App. S.W.2d children es
writ), a widow with two second
tablished a homestead di
marriage, subsequently ended in born of
vorce. There children were.no marriage.
second second consti
sought against the land foreclosure during
tuting his former wife’s