66 Tex. 494 | Tex. | 1886
At common law the civil as well as the natural death of the husband restored to the wife her rights and powers as a feme sole, if she was thus deprived of the benefits of marriage. Wheat. Selw., title Baron and Fem.
In Texas, practically, the protection and the disability of marriage have been linked together, and the wife when deprived of the one has been released from the other. Egell v. Dodson, 60 Tex., 331, and cases cited.
Humanity requires that when thrown, upon her own resources by the abandonment of her husband or by his lunacy or imbecility, she shall be unfettered in her struggle for existence and independence. Here her Separate being has not been merged in her husband as at common law, but as far as it could be done consistently with the preservation of the home and family, she has been disenthralled. She has equally with her husband an interest in the community property, and whilst her husband is the managing partner, and may assert his prerogative as long as he exercises it in good faith, yet certainly when he abandons the wife and their property, there can be no principle in our law or practice which would prevent the wife as a party in interest from asserting her rights in the courts. The husband has abdicated his authority and by that act enabled the wife to appear in court in her own name and right.
The property out of which this litigation arose was not only community property, but was claimed to be exempt from forced sale. Mrs. James,therefore, had in it a special interest, which the husband could no more sacrifice by abandonment than he could otherwise dispose of without her consent. The statute, which requires the court to appoint counsel for a defendant cited by publication, is to prevent frauds upon the court and is in the interest of a pure administration of the law, and has not the effect of depriving the wife of the defendant of any right or remedy the situation otherwise accords her. We conclude that the court did not err in allowing Mrs. James to intervene in the suit and assert her right to recover of the plaintiffs the value of any exempt property wrongfully converted by them.
We do not deem it necessary to determine whether Bobert Walker was authorized to make such lease of part of his homestead and of his wife’s separate property, without the express and formal concurrence of his wife. The property, for the value of which Mrs. James recovered judgment, was correctly held by the court below to be personal and not real. The greater part of it was such, and so fixed as to make it part of the land, if James had been the owner of the land. They constituted such improvements as become part of the realty or not according to the intention of the tenant, and it is presumed that it was neither his intention nor his contract to permanently enhance the value of another’s estate, by a class of buildings and fixtures which could be removed during his term without injury to the land. Ewell on Fixtures, 294; Adams v. Lee, 31 Mich., 440; Robertson v. Corsett, 39 Mich., 777.
It does not appear that Bobert Walker or his wife, as owners of the fee in the land, asserted any claim to the buildings and machinery as part of the land, and the plaintiffs’ attachment was levied upon them and Mrs. James recovered their value, as personalty. Hence, whether James under his lease from Bobert Walker acquired any interest in the land or not, cannot affect the issues between the parties to this appeal.
It is contended that the homestead under the constitution cannot embrace personal property. The exemption is in terms of lots or acres of land, but the object was to secure to the family a home. House is necessarily embraced in the word homestead. Franklin v. Coffee, 18 Tex., 417. If the head of a family owns a house and no interest or estate in the land on which it stands, the house is a chattel. If he occupies it with his family, it is their home. He may be compelled to move it from one lot to another as fast as legal process can oust him, still, though ambulatory, unsatisfactory, and in all its appointments mean; though it advertises the thriftless poverty of its proprietors, and is a caricature of the princely possibility of the exemption laws, it is the home of a family, and is embraced in the spirit and purpose, if not the letter, of the constitution.
The same principles under our present constitution must be applied to the place of business of the head of a family. To give effect to the
But we do not feel autorized to extend the scope of the law’s purpose any further than this. The mill and gin and pertinent apparatus and machinery may become part of the homestead in town or country, not because they are in themselves exempt, but because they are parts of that which is exempt. If they are annexed to and form part of a tract of land in which a family has a homestead right, their location and use will aid in determining what portion of the tract is under protection from seizure, as in the case of Railway Company v. Winter, 44 Tex., 597. But to be exempt as part of the homestead, they must be part of the exempt realty. They form no part of the home proper which it was the overruling purpose of the constitution to secure to the family, and can be claimed as exempt only when embraced in the words of the law as part of the land in terms protected.
The proposition that the mill and gin machinery are exempt as tools of trade cannot be seriously insisted upon. That it was urged that they were part of the homestead ought to be a sufficient answer to a claim so diametrically opposite. Bo authority has been cited which has gone far enongh to embrace as tools of trade this kind of property and the analogies and reason of the law do not persuade us to pioneer such extreme doctrine.
As Mrs. James recovered in the court below the value of all the houses and machinery on the leased lot, contrary to the principles announced in this opinion, the judgment in her favor is reversed, and as the case was tried without a jury, it is here adjudged that she recover of the appellants the sum of $575, the value of the dwelling house and gin hone, instead of the sum of $4,872T%%- adjudged below, and in all other respects the judgment of the court below remain undisturbed.
It is accordingly so ordered.
Reversed and Bendered.
[Opinion delivered June 25, 1886.]
