210 S.W.2d 255 | Tex. App. | 1948
Lead Opinion
On February 20, 1948, we reversed the order of the trial court dismissing this cause, and remanded the cause for further proceedings not inconsistent with our opinion. Upon further consideration, we have concluded that the judgment of the trial court ought to be affirmed. We hereby withdraw our former opinion, and write this as our opinion in the case.
James P. Gann and his wife owned a house trailer, mounted on wheels, of the type usually pulled behind an automobile. It was equipped with built-in beds, dinette, *257 stove, ice-box and cook stove. They and their two children had lived in it for two and a half years next prior to the time of the trial, and had no other home. About the first of January, 1947, they brought the trailer to Mexia, where Mr. Gann's parents were living in a rented home. They received permission from Mr. Gann's parents to park the trailer in the parents' back yard, and it was orally agreed that they might leave it there while Mr. Gann looked for a job. On January 21, 1947, Mr. Gann executed a note for approximately $1,200 to L. E. and R. E. Todd, and to secure its payment executed a chattel mortgage on the trailer. The note and mortgage were assigned to H. B. Chandler, who later brought suit thereon in the 54th District Court of McLennan County, and recovered judgment ordering a foreclosure of the chattel mortgage lien. Order of sale was issued and placed in the hands of the Sheriff of Tarrant County for execution. In the meantime Mr. Gann had entered the United States Army, and at the time of trial was stationed at Fort Worth Army Airfield, in Tarrant County. His family still lived in the trailer, which was, at the time the present suit was brought and at the time it was tried, parked on land belonging to said Airfield. Mrs. Gann did not sign the note and mortgage, and was not made a party to the foreclosure suit in McLennan County.
On September 2, 1947, Mrs. Gann, joined by her husband, brought the present suit in the 96th District Court of Tarrant County, naming H. B. Chandler and the Sheriff of Tarrant County as defendants. The relief sought was a temporary restraining order, a temporary injunction, and a permanent injunction to restrain the defendants from selling the trailer, on the ground that it was the homestead of Mrs. Gann and her family when the mortgage was executed, and that the mortgage was therefore void under the provisions of Article
On October 7, 1947, the cause came on to be heard on plaintiff's application for a temporary injunction, at the conclusion of which hearing the court entered an order declaring that the house trailer was personal property and was not exempted as a homestead under the Constitution of the State of Texas; and further declaring that since plaintiff did not comply with the provisions of Article 4643 of the Revised Civil Statutes, the application for temporary injunction should be denied and that the cause should be dismissed.
Mrs. Gann and her husband have appealed from such order.
Art. 4656 provides that writs of injunction granted to stay proceedings in a suit, or execution on a judgment, shall be returnable to and tried in the court where such suit is pending, or such judgment was rendered. Art. 4643 provides that an injunction may be granted under certain conditions by a judge of a court other than the court to which such injunction is returnable, but, as found by the trial court, plaintiff failed to bring herself and her case within the provisions of art. 4643.
Mrs. Gann was not a party to the foreclosure suit. If the property sought to be sold under the order of sale was her homestead at the time the mortgage was given, she was not precluded from bringing the injunction suit in a court other than that in which the judgment of foreclosure was rendered. See Long v. Knott, Tex. Civ. App.
The controlling question in the case, therefore, is whether or not the trailer was a homestead within the meaning of the Constitution.
"Homestead rights have their origin in constitutional and statutory provisions and *258 not in the common law." 40 C.J.S., Homesteads, § 2.
"There are no exemptions except those provided by law. * * * The courts have always given a liberal construction to the Constitution and Statutes to protect the homestead rights. However, the courts cannot protect that which is not homestead * * *." Whiteman v. Burkey,
"The exemption is, in terms, of lots or acres of land; but the object was to secure the family a home. `House' is necessarily embraced in the word `homestead.'" Cullers v. James,
The claim of homestead exemption does not depend on unqualified fee ownership of the land involved. We quote the following from the opinion in First Nat. Bank v. Dismukes, Tex. Civ. App.
Appellant argues that the requirements of the law were met in her case by reason of the fact that Mr. Gann's parents had orally given him permission to park the trailer in their back yard for such time as he wished to leave it there. In view of the holdings in such cases as Massillon Engine Thresher Co. v. Barrow, Tex.Com.App.,
Assuming for the purpose of argument that appellant did have such possessory interest in the land upon which the trailer was parked as would support the homestead claim, we must decide whether the trailer was such type of structure as to come within the rule which regards the house as part of the land, within the contemplation of the constitutional provision.
In 26 Am.Jur., p. 23, it is said that the homestead right may attach to a chattel if it has been annexed to the freehold so as to have become a fixture and to have acquired the character of realty.
It is settled that the exemption may be claimed in a house owned by the claimant, though the land belong to another. Where the ownership of a house is in one person, and the ownership of the land is *259
in another, the house may properly be referred to for some purposes as a chattel, and in such a case it might properly be said that the homestead exemption can attach to a chattel. But it does not follow that the exemption can attach to any kind of chattel, merely because the chattel rests on a tract of land by permission of the owner of the land. The distinction between a chattel, so-called, which is a fixture attached to the reality, and a chattel which is not, in relation to the matter of homestead exemption, is clearly recognized in the case of Cullers v. James,
Taken alone, this language might indicate a belief by the Supreme Court that the homestead exemption could attach to any chattel, such as a covered wagon, or a houseboat, or any other type of movable vehicle or conveyance, which for the time being might be occupied by the claimant and his family as living quarters. But when we examine the opinion in the light of the facts of the case, and consider the disposition made of the entire case, we come to a different conclusion. James claimed a homestead right not only in the two buildings, but also in the mill and gin machinery in the gin house. We quote further from the opinion: "To give effect to the object of the law, the dwelling-house and the gin-house must be held to have been improperly seized under the plaintiff's writ. But we do not feel authorized 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 a 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 Houston G. N. Railroad Co. v. Winter,
We find a similar holding in Taylor v. Prendergast, Tex. Civ. App.
Our homestead laws were the subject of a lengthy discussion in Woods v. Alvarado State Bank,
In each of the cases relied on by appellant, except one we shall discuss, the structure claimed as exempt was without doubt a house, or a building, of the kind and *260 character which would uniformly have been declared to be a permanent fixture attached to the realty, and could have been thought of as a chattel only within the limited meaning of that term as it is used In reference to a house which is owned by one person and situated on land owned by another.
Clark v. Vitz, Tex. Civ. App.
The court concluded its opinion by declaring that the trailer had the status of simply another room built onto the residence already on the lot.
We have been cited to no case, nor have we found any, applying the homestead exemption to a mere movable chattel which does not possess the characteristics of a permanent fixture attached to the realty. To hold that the homestead exemption applies to the trailer in the case before us would be to hold, as a practical matter, that it applies to almost every trailer which is occupied by the owners, if they constitute a family which does not own another home. It is not unreasonable to assume that they are usually parked, when they are not traveling along the highways, on some plot of ground with the permission of the owner of the ground. It might be consistent with the policy of our homestead laws to enact another law exempting automobile trailers which are occupied as homes, but, as said by the Supreme Court in Whiteman v. Burkey, supra, there are no exemptions except those provided by law, and the courts cannot protect that which is not a homestead.
Our judgment rendered on February 20, 1948, is set aside, and our opinion of that date is withdrawn. The judgment of the trial court is hereby affirmed.
Appellants' motion for rehearing, heretofore filed, is overruled, but in view of the action taken herewith, appellants are given leave to file a second motion for rehearing within fifteen days after the date the present judgment is rendered.
Concurrence Opinion
Under the facts in this case, I concur in the conclusions reached in the opinion written by Chief Justice McDonald on motion for rehearing. If a person encumbers property with lien at a time when it is not a homestead, he cannot later make it a homestead and thereby defeat the lien. My personal views are that a homestead may be had in an automobile trailer in which the family lives. Some proprietary interest in land must be associated with the ownership and occupancy. That interest may be in fee or under lease for a term. The nature of the structure claimed as a home is of no consequence, whether it be a mansion, hovel, tent or auto trailer. Whether the foundation be of reinforced concrete, pine blocks, or wheels can make no difference. The ease and nominal expense with which it can be removed to another location do not alter its homestead character.
These matters only incidentally entered into the case before us, but I am unwilling to be understood as holding that under no circumstances could an auto trailer in which a family lives be held to be a *261 homestead. The main opinion does not hold that such a homestead interest could never exist, yet I have only written this to express my own views so that the opinion may not be misinterpreted.