131 S.W. 641 | Tex. App. | 1910
Suit by Savings Loan Company against John W. Bristoll and others for partition of lot No. 3 in block 549 of the city of Galveston.
The facts are substantially as follows: The lot in question was acquired by William Bristoll prior to 1889 and constituted the community homestead of the said Bristoll and his wife, Cassandra Bristoll. William Bristoll died in said year, leaving surviving him his said wife and four children, the issue of his marriage with Cassandra, viz., John W.; W. M.; Lois, who afterwards married James Ellender, and Louise. After the death of her husband the said Cassandra borrowed money from the appellant for the purpose of making improvements upon the homestead, securing the sums borrowed by mortgages on her undivided half interest in the lot and improvements. In 1907, in the District Court of Galveston County, in a suit brought by the appellant, Savings Loan Company, *388 against Cassandra Bristoll, to which the said children were made party defendants, a final judgment was entered foreclosing plaintiff's mortgage liens on the undivided half interest of the said Cassandra in said lot and improvements, and the same were ordered to be sold in satisfaction of plaintiff's debt. In said judgment it was decreed that plaintiff take nothing as against the said children. On February 11, 1908, an order of sale was regularly issued under said judgment, and thereafter Cassandra's undivided half interest in said lot was sold thereunder and bought in by the Savings Loan Association, and a proper deed conveying the same to said Association was executed and delivered to it. On May 7, 1908, this suit for partition was brought.
From the date of the death of William Bristoll and to the time of the trial, the said lot was continuously occupied by the said Cassandra and her minor daughter, Louise, as their homestead. The two sons, John W. and W. M., and the daughter, Lois, married and do not live on the property.
On March 25, 1909, after the institution of the partition suit, the County Court of Galveston County, upon an application filed by Cassandra Bristoll, appointed the said Cassandra temporary guardian of the minor, Louise, and in that connection made its further order in which it was "adjudged and decreed that said lot 3 in block 549 and improvements in the city and county of Galveston, Texas, be decreed to be the homestead of said minor, Louise Bristoll, and that the same be set apart, and the guardian of said minor and said minor be allowed to use and occupy the same as a homestead until said minor attains her majority." Thereafter, on May 19, 1909, the partition suit was tried by the court without a jury and resulted in a judgment in favor of defendants, the court finding and decreeing that the premises sought to be partitioned "were the community homestead of the late William Bristoll and his wife, the defendant, Cassandra Bristoll, and so occupied and used by them at the time of his death, and have been ever since and is now so occupied and used by the said surviving wife and their minor daughter, the defendant, Louise Bristoll, of the age of fifteen years, and that the same has been duly set aside to the said Louise by the County Court of Galveston County as her homestead during her minority; and because it is the opinion of the court that the law and the facts are for the defendant, Louise Bristoll, it is therefore ordered, adjudged and decreed that said premises known as lot No. 3, in block 549, in the city and county of Galveston, Texas, being incapable of partition at this time, that the plaintiff, Savings Loan Company, take nothing by its suit, and that the defendants go hence . . . without prejudice to plaintiff's right to demand and sue for partition after the said Louise shall attain her majority."
From this judgment the plaintiff, Savings Loan Company, has prosecuted this appeal, and assails the judgment by appropriate assignments of error, which we will not consider in detail.
Section 52 of article XVI of the Constitution of 1876 provides: "On *389 the death of the husband or wife, or both, the homestead shall descend and vest in like manner as other real property of the deceased, and shall be governed by the same laws of descent and distribution, but it shall not be partitioned among the heirs of the deceased during the lifetime of the surviving husband or wife so long as the survivor may elect to use or occupy the same as a homestead, or so long as the guardian of the minor children of the deceased may be permitted under the order of the proper court having the jurisdiction, to use and occupy the same."
Article 2057, Revised Statutes, 1895, provides: "The homestead shall not be partitioned among the heirs of the deceased during the lifetime of the widow, or so long as she may elect to use or occupy the same as a homestead, or so long as the guardian of the minor children of the deceased may be permitted under the order of the proper court having the jurisdiction, to use and occupy the same."
Article 2062 provides: "On the death of the wife, leaving a husband surviving, the homestead shall descend and vest in like manner as other real property of the deceased, and shall be governed by the same laws of descent and distribution, but it shall not be partitioned among the heirs of the deceased during the lifetime of such surviving husband, or so long as he may elect to use or occupy the same as a homestead."
Upon the death of William Bristoll his undivided interest in the community homestead descended and vested in his children (Rev. Stats., art. 1696), and their right to the immediate use and possession thereof and to a partition thereof became fixed, subject only to the right of his widow to use or occupy the same so long as she might elect to do so, or so long as the duly appointed guardian of the minor, Louise, might be permitted, under the order of the proper court, to so use or occupy the same; but during the time the homestead should be so used or occupied the heirs of William Bristoll could not lawfully have a partition thereof. But it seems clear to us from the wording of the Constitution and statutes that the prohibition against a partition of the community homestead is as to the heirs of the deceased spouse, and not as to those claiming an interest in the land through titles otherwise acquired than by descent from the deceased spouse.
This is distinctly declared in Gilliam v. Null,
"The Constitution refers in its terms only to a descent of the land to the heirs of one of the spouses occupying it at the time of such death as a homestead, and prohibits its partition among the heirs of such decedent during the lifetime of the survivor or as long as he or she may choose to occupy it as a homestead. In this case the decedent was Richard Gilliam, and it was to parties claiming as heirs of his estate that the partition is prohibited, not to those claiming an interest in the land through other titles."
In Ford v. Sims,
Upon the death of William Bristoll his surviving widow had authority to sell, or, as she did, mortgage her undivided half interest in the community homestead. Lacy v. Rollins,
The trial court in support of its judgment evidently relied upon an expression contained in the case of Harle v. Richards,
The judgment of the court below is reversed and the cause remanded *391 with instructions to the District Court to enter its decree vesting the title to an undivided half interest in the premises in question in appellant, and to proceed to cause partition thereof in the manner prescribed by law.
Reversed and remanded with instructions.
Writ of error refused to Bristoll.