Wolfe v. Buckley

52 Tex. 641 | Tex. | 1880

Bonner, Associate Justice.

The judgment below exemptsthe property in controversy from forced sale, on the ground that the appellee, Mrs. Buckley, was the head of a family, and that the same constituted her homestead; and before the judgment should be reversed, it should appear that in this there was error.

The judgment against Mrs. Buckley, to the lien of which it is claimed the property should be subject, was rendered in favor of appellant, Mrs. Bertha Wolfe, on December 10,1878. It was not controverted that Mrs. Buckley had lived upon the place since April, 1876. The only material question in the case was, whether Mrs. Buckley constituted such head of a family as, under our Constitution and laws, was entitled to the homestead exemption.

As said in Roco v. Green,. 50 Tex., 490, owing to the want of appropriate legislation on this subject, we have had to- decide the particular case under consideration by the aid of such rules of construction and analogy as were considered most applicable.

The testimony shows that Mrs. Howard, who was the daughter of C. W. Bucldey, deceased, late husband of appellee, Mrs. Buckley, and who was her step-daughter, died in 1879, leaving four children, among them Anna Howard; that Mrs. Howard had been raised by Mrs. Buckley from a mere child, and had been a constant inmate of her family since her marriage with the father, C. W. Buckley, until the marriage of Mrs. Howard with W. H. Howard, in 1869; that after the death of Mrs. Howard, her surviving husband and the father of the children, having no home and being unable to support them, they were brought to the house of Mrs. Buckley, the property in controversy, and have lived with her ever since. This was prior to the date of the judgment in favor of appellant.

Subsequently to the levy of the execution, Mrs. Buckley, in pursuance of a previously long-formed intention, formally, under the statute, adopted the child Anna, and who then and since the death of her mother had been living with Mrs. Buckley.

Although the immediate cause of the adoption of the child Anna was to strengthen the homestead rights of Mrs. C. Buckley, yet, under all the circumstances of this case, the fact that this homestead had been purchased with proceeds derived from the sale of one which clearly was not subject to forced sale; that this purchase had been made and the new homestead occupied, as such, by Mrs. Buckley b'efore the rendition of this judgment against her; the continued residence with her of the children of Mrs. Howard, also before its rendition, and under circumstances which seem to preclude any presumption that this was done with an improper purpose; the peculiar social status of the parties; the prior assumed obligation of Mrs. Buckley to support these children, and their state of dependence upon her for moral training, and for at least a portion of their support and maintenance; her previously long - formed intention to adopt Anna, and the general policy of our laws providing exemption in favor of widows and minor children,— we are not prepared to say that this did not constitute such family as woitlcl be entitled to the protection of this property as a homestead, even without the adoption of the child Anna; or that if this adoption was necessary for this purpose, that, under the circumstances, there was such bad faith in the transaction as would amount to á fraud upon any previously-acquired rights of the judgment creditor.

[Opinion delivered February 27, 1880.]

It does not, in this case, become necessary to determine the legal effect of such adoption, further than that, if made in good faith, it would create such legal relation of parent and child as would constitute a family as contemplated by our Constitution and laws.

Neither does it become necessary, in the view we take of this case, to express any opinion upon the question whether there might not be a distinction, as affecting the right to acquire a homestead, between the rights of a creditor acquired by a judgment lien upon all the lands generally of the debtor, and those acquired by a specific lien upon a particular tract, as by attachment, mortgage, or vendor’s lien. (North v. Shearn, 15 Tex., 174; Macmanus v. Campbell, 37 Tex., 267.)

The judgment is affirmed.

Affirmed.