Whitehead v. Nickelson

| Tex. | Jul 1, 1878

Moore, Associate Justice.

It cannot be maintained, that the Constitution and laws exempt the homestead from forced sale, unless the defendant in execution was the constituent of a family occupying the premises as their homestead when he acquired title thereto; or unless it was thus occupied prior to its sale under execution. The fact that the premises at some previous time may have been the homestead of the family, and exempt from forced sale for the payment of the debts of the head of the family, if he afterwards parts with his title to it, will not operate to exempt it, if he reacquires it after the disruption of the family, whether the family has been dissolved by death or the voluntary severance of the family relation by the constituents of which it was composed. Nor will the fact that one of the members of the family acquired the title to the property after the head of the family, who is the defendant in execution, parted with it, and that it continued to be occupied as the homestead until the family was finally dissolved, nor the fact that immediately on the dissolution of the family its former head reacquired the title, exempt it from liability to sale for the payment of his debts.

Unquestionably, all of Nickelson’s right or interest in the property in question in this suit was divested out of him by the sale under the deed of trust to Fenner: Although Nickelson continued to hold and claim the premises as his homestead after this sale, there is not the slightest ground exhibited in the record for impeaching its validity, or to warrant the subsequent claim of the property by Nickelson adversely to the purchaser at this sale. And evidently he ultimately abandoned all claim to it when, by permission of the Probate Court, he purchased the property, from the purchaser at the trust sale, for his daughter. If he could have impeached the sale under the trust deed to Fenner previous to this purchase, he certainly estopped himself thereby from asserting title to it against Ms daughter and those claiming under her title. And we do not understand, that, on the trial in the court below, Nickelson claimed or pretended to have any title to the premises whatever, except that acquired from Ms daughter, by the instrument exhibited in the statement of facts, dated March 8, 1872, and her and her husband’s deed of the 26th of the same month. Without pausing to consider whether the first of these instruments is supported by any valid consideration, or can be regarded as justly entitled to any weight or consideration in and of itself, it will suffice to say, that giving to it the most favorable consideration for Nickelson of which it will possibly admit, still there can be no pretense that it vests, or was intended to vest, any right or title to the premises here in controversy in Mm, prior to his daughter’s marriage. The right or title intended to be secured to him by this instrument was entirely dependent upon her marriage. If it can be held to vest an equitable title or interest in the-premises in Nickelson, evidently it did not do so until his daughter’s marriage. But by her marriage she ceased to be a constituent of his family. It is, therefore, beyond dispute, unless there was some other constituent member of the family besides the father and daughter at the date of the marriage, or the property, subsequent to its conveyance by Ms daughter, and prior to its sale, became the homestead of a family of which Nickelson was a constituent, it was not exempt from sale for the payment of his debts.

Can it be said, on the facts exhibited in the record, that Nickelson, when he acquired the property, or at any time-subsequent thereto, prior to its sale under the execution, was either the head or a constituent member of a family, in the sense contemplated in the Constitution ? It is a maxim, that a man must be just before he is generous. If so, certainly he cannot exempt his property from liability for his debts by voluntarily taking upon himself, for some temporary or indefinite period, the support and maintenance of persons having no legal claim upon him, though prompted to do so by the strongest motives of gratitude or affection; nor does the mere temporary and indefinite union of persons in one household, “ directing their attention to a common object, the promotion of their mutual interest and social happiness,” constitute a family, within the meaning of the Constitution. Nor can it be said, that because a party may, in consideration of the services of hirelings, or of persons permissively residing with him, pay them wages, or contribute in whole or in part to their support, there is a family, as contemplated in the Constitution. But unless parties occupying some such relation as indicated above constitute a family, a portion of the .property of the head whereof is exempt from forced sale by the Constitution, (and we are clearly of the opinion they do :not,) appellee evidently was not entitled to the immunity given him by the verdict and judgment; and the charge of the court, which obviously led to this result, was, as we think, unquestionably erroneous.

In disposing of this ease, it is not necessary for us to say, that only a family composed of the husband and wife, or one of them and minor children, or unmarried daughters, or presumptive heirs, or others for whose support the head of the family is legally bound to provide, can claim the benefit of the exemption of the homestead from forced sale, or to lay down fixed and definite rules, by which it can be determined in every case what character of persons living together, under the peculiar circumstances of each case, will constitute a family within the meaning of the Constitution; and we have, therefore, made no effort to do so. When a case is presented to us requiring it, it will then be time enough for us to attempt the task, the performance of which evidently cannot be free from difficulty.

The judgment is reversed and the cause remanded.

Reversed and remanded.