E. B. and E. J. Jenkins v. Volz

54 Tex. 636 | Tex. | 1881

Gould, Associate Justice.

The homestead of appellants was protected by the constitution, although established on land, in which they owned only an undivided interest, being joint owners, or tenants in common, with third parties. Clements v. Lacey, 51 Tex., 150.

Their plea setting up their homestead exemption to the extent of an undivided interest of two hundred acres, and stating facts showing their inability, before partition had, to designate their homestead boundaries, presented a valid defense, and was erroneously stricken out.

Even if appellants had been absolute owners of the entire tract mortgaged, it by no means follows that their failure to designate in their plea the boundaries of their homestead would justify the striking out of that plea and the foreclosure of the mortgage, in utter disregard of the homestead claim. In case a defendant in execution, whose homestead is part of a larger tract than is exempted, fails himself to do so, the statute prescribes a mode by which the homestead boundaries may be fixed without his assent, and thereafter the excess subjected to execution sale; but there is nothing in the statute attempting to authorize the forced sale of a homestead, because of the failure of the homestead claimant to designate its boundaries.

But we are further of opinion that the homestead right of appellants was not confined to their undivided interest in the two hundred acres, including their improvements, but extended to an undivided interest of two hundred acres out of the five hundred and twenty acre tract, and that until partition had, it was out of their power to designate their homestead by metes and bounds.

The constitutional protection to a homestead of two hundred acres should be enforced in its spirit, and so enforced protects the homestead, when established on land owned jointly with others, to the extent of an undivided interest of two hundred acres. If, on partition with their co-tenants, the part of the tract occupied and improved by appellants should be allotted to them, their homestead right to two hundred acres, including their improvements, would be complete, notwithstanding the mortgage. If, however, it should be found impracticable to allot to appellants the part occupied and improved by them, that fact should not and would not operate to defeat or lessen their homestead right. Even if, in making partition, the entire tract had to be sold, the homestead right would attach to and be protected in the proceeds of the sale.

The case of Clements v. Lacey, 51 Tex., 150, when examined with reference to its peculiar facts, will be found to contain nothing inconsistent with the views here expressed. The improvements were made by the joint owners, not by the homestead claimant alone.

In the plea stricken out it was suggested that the other joint owners be made parties, the land partitioned, and, after the homestead of two hundred acres had been designated out of the part partitioned to appellants, that the excess be subjected to plaintiff’s mortgage. This, we think, was preferable to selling the undivided interest in the entire tract subject to the homestead. It is desirable to avoid judicial sales of uncertain interests. A due regard for the interests not only of the debtor and creditor, but of the public who are invited to purchase, requires that the thing to be sold be definitely ascertained.

For the error in striking out and disregarding the plea of homestead, the judgment is reversed and the cause remanded.

Reversed and remanded.

[Opinion delivered April 9, 1881.]