36 S.W.2d 992 | Tex. | 1931
G. W. McDaniel, Sr., and his wife, Josephine, used and occupied 160 acres of land as a rural homestead. The wife died in 1918, leaving surviving her husband, one minor son eighteen years of age, and several adult children. The father and minor son continued to use and occupy the homestead until in June, 1926, when the same was partitioned between the father and children, eighty acres being set aside to the father and the same amount to the children. Thereafter the father, for a valuable consideration, sold the eighty acres set apart to him in the partition to his son, G. W. McDaniel, Jr.
Plaintiff in error brought this suit to foreclose upon the premises aforesaid in a judgment lien, which he averred was created by the abstracting of a judgment obtained by him in 1910 against G. W. McDaniel, Sr. and T. L. McDaniel, his son.
The case was tried before the court, without the intervention of a jury, and judgment rendered foreclosing plaintiff in error's judgment lien upon the eighty acres owned by the children of G. W. McDaniel. Upon appeal the Court of Civil Appeals,
The legal question arising under the facts may be thus stated: Since the property upon which the lien was sought to be foreclosed was the homestead of G. W. McDaniel, Sr., and Josephine McDaniel, did such homestead, upon the death of Josephine McDaniel, pass to the surviving husband her heirs free from community debts?
Plaintiff in error invokes the doctrine announced by the Supreme Court in Givens v. Hudson,
Here it is shown that upon the death of the wife the husband and minor son were entitled, under the express provisions of the Constitution (article 16, sec. 52), as constituent members of the family remaining, to occupy the property as a homestead free from interference by creditors. It did not become subject to sale for community debts even when the minor became of age and the property ceased to be used for homestead purposes.
It has often been determined by the Supreme Court of this state that upon the death of an owner using and occupying property as a homestead, where there remains a constituent member of the family (wife, husband, minor child or unmarried daughter), the title passes to all of the heirs and is subject only to the right of use by those entitled to occupy it as a homestead; the estate thus taken by the heirs to the property is unburdened by the claims of creditors of the community estate. Childers v. Henderson,
In the case of Lacey v. Lockett, above cited, the situation was practically identical with that here involved, and the holding is decisive of the proposition that even the adult heirs of Mrs. McDaniel took the homestead free from community debts. This conclusion is clear from the following language used by the court:
"Upon the death of N.H. Cook, his wife and daughter inherited or took the title to the land composing the homestead in equal portions, and upon the decease of Mrs. Cook the title to the whole property (except that part already sold) vested in the appellant Mrs. Annie G. Lacey. As the exemption from forced sale continued from the time it was set apart to her mother, and as it was thereafter not liable for the debts of the deceased father, as we have seen, it follows that she inherited the property absolutely and free from the claims of creditors or the administrator."
At the death of Mrs. McDaniel the homestead property descended and vested in her husband and children in equal portions, with the rights of occupancy of the entire tract by the father and minor son. Since there remained constituent members of the family, the premises retained the homestead character and therefore passed free from liability for community debts. When the property descended free from such obligations, the exemption was a continuing one; hence a creditor holding a community debt by recording his judgment could lawfully acquire no lien thereon.
This principle was reaffirmed in Childers v. Henderson, 76 Texas, *165
664,
"The Constitution takes for granted that the protection from forced sale of the homestead 'of a family' will enure to the benefit of every surviving constituent of the family without express mention as is shown by its providing against its being partitioned contrary to the right of occupancy of the surviving husband, wife, and minor children without mention of creditors."
In the above case Chief Justice Stayton dissented, stating that it seemed contrary to the spirit as well as the letter of the law to exempt the adult heirs' portion of the homestead from sale for the ancestor's debts because the interest of the unmarried daughter was not subject to sale. The doctrine announced by the majority, however, has been continuously followed and reaffirmed in numerous cases, so that it may now be said to be the settled law of this state.
In Cameron v. Morris,
In Zwernemann v. Von Rosenberg,
The foregoing authorities firmly establish the principle that a homestead cannot be subjected to the payment of community debts when there remains any constituent member of a family, as designated by the Constitution and statutes of this state, to take and occupy it as such. Under such circumstances it descends and vests in all the heirs free from community debts, even though some of the heirs may be adults and not entitled to any homestead interest in the property. *166
The Court of Civil Appeals properly reformed the judgment of the trial court so as to deny plaintiff in error a foreclosure against any interest in this property for the debts of the father. It was also correct in decreeing foreclosure against the one-fourteenth interest inherited from his mother by T. L. McDaniel; for in this instance the judgment was rendered against him for his individual debt. Such judgment was properly abstracted and therefore a lien was created against his interest in the land.
The judgment of the Court of Civil Appeals is affirmed.
The foregoing opinion is adopted as the opinion of the Supreme Court, and judgment will be entered in accordance therewith.
C. M. CURETON, Chief Justice.
