17 Tex. 74 | Tex. | 1856
From the statement of facts, there is no question that the whole of the land sued for in this case was, in 1848, the homestead of Boulware, the appellee in this Court and plaintiff in the Court below ; and it is equally clear that he never relinquished or abandoned it, but that it was his homestead at the time of the sale by the Sheriff, under which appellee became the purchaser and obtained possession. The death of the wife whilst it was his homestead, and his having no children, did not destroy its distinctive character of a homestead, he continuing to reside there with his slaves, hirelings and niece, and her husband, Mr. McAlister. If he had been without servants or any one with him after the death of lib-wife, it would still have been his homestead so long as it continued to be his residence, and protected from a forced sale. (Wood v. Wheeler, 7 Tex. R. 13.) His temporary absence for six or eight months, leaving his slaves and McAlister as agent, and no new residence acquired, could not amount to a forfeiture of his homestead rights.
At the time the homestead was acquired, the protection from a forced sale would have included ail the land sued for in this suit, because it did not exceed two hundred acres, and was in the country, not included in city or town ; and it the case stopped here, it would be clearly with the appellee. But by the 2nd Section of the Act incorporating the town of Marshall, passed in February, 1850, the limits of the town were extend
, There is another view which fortifies the conclusions to which we have arrived ; that is, that it is impossible to know how the homestead will be affected by extending streets through it, and connecting it with the plan of the town. It may be so materially affected as to render it of little or no value as a homestead ; and if it should be held that it was cut off from and separated from the lands without the jurisdictional limits of the corporation, the owner would have an equity that should be secured to him. This, perhaps, could only be done by allowing him to make his homestead on the land without the corporate jurisdiction of the town. This we regard as a strong
Judgment affirmed.
Wheeler, J.. did not sit in this case.