General Bonding & Casualty Ins. Co. v. Trabue
174 S.W. 689
Tex. App.
1915
Check Treatment
LEVY, J.

(after stating the facts as above).

[1] It appears that the addition to the homestead uses of the north half of lot 19 and the south half of lot 18 made the homestead claimed of the naked ground value of $5,775 when designated, which amount exceeds the value allowable as exempt to the sum of $775. It is insisted by plaintiff in error, under pertinent assignment of error, that the south half of lot 18, which would create an excess, did not constitute a part of the exemption and was subject in its entirety to the lien of the deed of trust. The admirably prepared argument of plaintiff in error is predicated upon the contention that the words “lot or lots,” as used in the constitutional provision, intended to confine the premises that should be appropriated and occupied as a homestead to the plotted lots according to the survey and plot of the particular city, town, or village, and that the words should be given such interpretation because of the lack of legislative regulation providing any means for designation of an urban homestead out of premises having a worth exceeding the constitutional valuation. The question presented must depend for solution upon the construction of the words “lot or lots.” An urban homestead, as defined by the Constitution, “shall consist * * * of a lot or lots, not to exceed in value $5,000.00 at the time of their designation as the homestead, without reference to the value of any improvements thereon.” Article 16, § 51; R. S. art. 3786. In construing the word “lot,” as used in laws allowing a lot as urban homestead, courts of some states have given it the meaning of an artificial subdivision for the purpose, according to the survey and plot of the city, town, or village, while other courts have held it to comprehend simply an area or piece of ground, though containing less than a plotted lot. By taking the word “lot” in its broad and popular sense, there is room afforded in such meaning to permit the appropriation to homestead uses of any fractional part as may be subdivided and bounded by the conveyance of the owner out of a plotted lot. As, for instance, the half, third, or fourth part of an entire lot may be appropriated and occupied for homestead purposes and be exempt. And such interpretation would not operate to deprive any owner of only a fractional part of a single plotted lot from the benefit of the homestead exemption. But by taking the word “lot” as meaning and referring to a technical subdivision for the purpose according to the survey and plot of the city, town, or village, there is afforded no room to permit the appropriation to homestead uses of any fractional portion of the plotted lot. And such interpretation would operate to deprive the owner of only a fractional portion of a plotted lot from the benefit of any urban homestead exemption, since his attempted designation would be of an area of ground less than “a lot,” according to the plot of such city, town, or village. Holding in view the purposes of the exemption law, and to fully and generally accomplish its purposes, it is concluded that the words “lot or lots” must be taken and construed in the broad sense, as commonly used, of describing simply a piece of ground, without regard to size, entirely located within the confines or plan of the city, town, or village. This construction of the words, as within the letter and spirit of the article, would not, it is thought, cast doubt upon the right of the owner of only a part of a plotted lot, less than the entire lot, coming under the benefit of the exemption. The Supreme Court in Taylor v. Boulware, 17 Tex. 74, 67 Am. Dec. 642, in reviewing the constitutional provision exempting “any town or city lots in value not exceeding two thousand dollars,” declared the provision “entitled,” to accomplish its purpose, “to liberal construction.” And that rule has been generally applied in the numerous cases involving the homestead laws of this state. Holding, as we do, that the words “lot or lots” should be given the broader meaning, it would follow that the fact that a homestead excessive in value has been set apart does not prevent the property designated from having the status of a homestead to the extent of the limit of value. It has been so decided in effect. Hargadine v. Whitfield, 71 Tex. 482, 9 S. W. 475. And the precise contention of plaintiff in error that the south half of lot 18 did not at all become a part of the homestead must, it is concluded, be overruled. So much of the two added lots in evidence became a part of the homestead when designated as would in-value fill the measure of $5,000, and was exempt, while the worth of such property above the limit of $5,000 is subjected to the lien executed by the owner. This excess, as found by the jury, was by the court applied to the property covered by the deed of trust, and foreclosure and order of sale were decreed of an undivided interest to the extent of the excess value, fixing the percentage thereof.

[2] Defendant in error by cross-assignment complains of the decree foreclosing an undivided interest to the extent of the excess as being null and void upon the ground that it is in effect foreclosing on part of the homestead itself. As the excess, which is all that is ordered sold, is not exempt as a part of the homestead, it may be subjected to the lien. And the excess being a subject-matter of sale and disposition, the right of the cred *692 itor to have sale of the same is not abridged, it is believed, by the fact that such excess or residue may be an undivided parcel of the property. The purchaser under such sale acquires no right or interest in the exempt portion of the property. The purchaser becomes a tenant in common to the extent of his interest with the owner of the homestead property, and this situation results from the designation of an excessive homestead. The purchaser and the owner of the homestead property have a means of partitioning the property in proper equitable proceedings according to the facts and equities of the particular case.

Affirmed.

<£=oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

<&wkey;For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes