author: HAWKINS, J.

text:
    HOEFLING et al. v. HOEFLING et al.
    (No. 2404.)
    (Supreme Court of Texas.
    May 28, 1914.)
    1. Homestead (§ 146) — Rights oe Surviving Members oe Family — Liability eor Debts.
    Under Const, art. 16, § 50, providing that the homestead of a family shall be protected from forced sale for the payment of all debts, except for the purchase money thereof, taxes and work and material used in constructing improvements, and that no mortgage or other lien shall be valid, except for the purchase money or improvements, section 52, providing that on the death of the husband, wife, or both, the homestead shall descend in like manner as other real property, but shall not be partitioned among the heirs of deceased during, the lifetime of the surviving husband or wife, or so long as the survivor may elect to use or occupy it as a homestead, or so long as the guardian of minor children may be permitted under the order of proper court to use and occupy it, and Rev. St. 1911, arts. 3235, 3413, 3414, and 3421-3428, inclusive, relative to setting apart the homestead and its liability for debts, when the head of a family dies intestate leaving a widow, minor child, or unmarried daughter, whether his estate is solvent or insolvent, the homestead, whether set apart by the probate court for the use of such members of the family or not, descends and vests in all the heirs of the decedent, subject to the right of the widow and minor children to use and occupy it, absolutely exempt from any present or future liability for the decedent’s debts, except such as the Constitution permits to be secured by a lien thereon, and that status is not affected by the subsequent voluntary sale or' abandonment of the homestead.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. § 257; Dee. Dig. § 146.]
    2. Homestead (§ 145) — Rights oe Surviving Spouse — Liability eor Debts.
    Regardless of solvency or insolvency, a surviving husband or wife is entitled to hold and use the homestead, exempt from forced sale for the payment of his or her own debts, so long as he or she may choose to do so, even though such spouse be the sole remaining member of the family; but the subsequent abandonment of the homestead ends its right to exemption against debts of that character.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 268, 277, 280, 285; Dec. Dig. § 145.]
    Error to Court of Civil Appeals, Fourth Supreme Judicial District.
    Suit for partition by L. Thulemeyer against Dorothea Hoefling and others. A judgment in favor of the defendants Mary Hoefling and others was reversed by the Court of Civil Appeals, and they bring error.
    Affirmed.
    Henry E. Vernor, Clark & Bliss, and Den-man, Franklin & McGown, all of San Antonio, for plaintiffs in error.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HAWKINS, J.

William Hoefling, Sr., hereinafter called decedent, and his wife, Dorothea, owned lot 9 in block 16, city block 432, in San Antonio, as community property, and made their home thereon from a date prior to September 17, 1895, until he died in November, 1898. Decedent left surviving him his said wife, who qualified as administra-trix of his estate, and their three children, Rudolph, Emma, who married Wolfe, and Henry, who conveyed to plaintiff in error, L. Thulemeyer, an undivided one-eighth interest in said lot; also four grandchildren, W. R., Daisy, who married Voight, G. A., and Willie, children of another son, William Hoef-ling, Jr., whose death preceded that of decedent; also Mary Iloefling, who was the widow of said deceased son and mother of said grandchildren. By order of the probate court said lot 9 was set apart as a homestead to decedent’s widow; but she subsequently abandoned it prior to the institution of this suit

William Hoefling, Jr., had insured his own life for the benefit of his said wife, Mary, and after his death she collected thereon $3,500, which she loaned to her father-in-law, William Hoefling, Sr., on September 17, 1895, taking his interest-bearing note therefor, in consideration of which loan he and his said wife on that day executed, duly acknowledged in the manner required by law for conveyance of real estate, and delivered to said Mary Hoefling, a written instrument which recited said loan and note, and continued thus:

“Now, therefore, to secure the payment ot said note, and in event of failure to pay when due, or in event of the death of the said William Hoefling, then, in such events, the said Mary Hoefling shall have, and we do hereby grant to her, a $3,500 interest in our joint estate of which we may be possessed at such time, irrespective of her natural heirship or that of any others,” etc.

A portion of that debt remains unpaid.

Said note and written instrument were duly proved up, allowed by the administra-trix, and approved by the probate court, as a third-class claim against the estate of decedent, for $3,500, with interest, and, for payment thereof, that court decreed a foreclosure of lien “upon all the property of said es-tafé.” Mary Hoefling transferred one-third of said claim to Yernor, who transferred his interest in said claim to D. Sullivan & Co., a firm composed of D. Sullivan and W. C. Sullivan.

Having acquired Henry Hoefling’s undivided one-eighth interest in said lot 9, L. Thule-meyer brought this suit for partition thereof, and for an accounting for rents thereon, and distribution thereof. The defendants were said Dorothea Hoefling, a widow, Rudolph Hoefling, Emma Wolfe and her husband, Bert Y. Wolfe, Mary Hoefling, a widow, W. R. Hoefling, Daisy Voight and her husband, Willie Hoefling, a minor, and H. E. Yernor, D. Sullivan, and W. C. Sullivan.

Mary Hoefling answered, alleging the foregoing facts relating to her said loan to William Hoefling, Sr., and said note' and written instrument of September 17, 1S95; that, after Dorothea Hoefling qualified as such ad-ministratrix, she had represented that there was ample property, other than said lot 9, to pay off said debt, and induced said Mary Hoefling to prove up her said claim against decedent’s estate; that said administratrix proposed to her that, if she would allow her to keep $500 out of $1,580, which said ad-ministratrix had collected for said estate, the latter would recognize her interest in the property in controversy to the extent of the balance of the former’s said claim, which offer she accepted, whereby she became the owner of an undivided 121/370 interest in said property; and that she had assigned and conveyed an undivided one-third interest in and to her said claim, right and title, and that he had assigned and conveyed same to said D. Sullivan & Co.; whereupon she prayed for judgment against all the other parties for her said interest in said property, and for general relief.

Dorothea Hoefling, Emma Wolfe and her husband, and Rudolph Hoefling defended upon the grounds that said claim of Mary Hoefling against said estate had been so allowed, and said decree of the probate court concerning it entered,- and that the property in controversy was not subject to partition because it was the homestead of Dorothea Hoefling, and had been so set apart to her; wherefore the matter was res adjudieata. The answer of Vernor and that of the Sul-livans adopted said answer of Mary Hoefling, and prayed that their respective interests aforesaid be protected.

The jury, to whom the cause was submitted upon only one special issue, found that Dorothea Hoefling had abandoned said lot 9 as homestead; whereupon the trial court entered a decree that said lot 9 be sold to satisfy said claim of Mary Hoefling, amounting to $5,712.45, and that the balance, if any, be distributed as follows: To Dorothea Hoefling one-half, and to Emma Wolfe and L. Thulemeyer each one-eighth, to Daisy Voight, W. R. Hoefling, G. A. Hoefling, and Willie Hoefling each one thirty-second of such balance; that Mary Hoefling now owns two-thirds. of her said claim; that D. Sullivan & Co. hold the remaining third of said claim for any debt which said Vernor may owe them; and that two-thirds of the amount of said claim be paid over to Mary Hoefling, and the other third to D. Sullivan & Co. for the purposes stated. From said judgment, Dorothea Hoefling, Emma Wolfe and her husband, and Rudolph Hoefling appealed, as against all the other parties.

The Court of Civil Appeals held, substantially, that said written instrument of date September 17, 1895, was intended merely to constitute a lien to secure the note therein mentioned, and, inasmuch as said lot 9, therein described, was at that time the homestead of William Hoefling, Sr., and his said wife, the makers of that instrument, such lien could not apply to said lot 9, but, as to it, was inhibited by the Constitution of Texas ; that, under the facts and the Constitution and statutes and decisions of this state, said lot 9 passed to decedent’s heirs, exempt from his debts, whether his estate was solvent or not, and so remained; that there was ample evidence to support the jury’s finding; and that decedent’s widow had abandoned said homestead, but that, as to decedent’s creditors, such abandonment was wholly immaterial, whether decedent’s estate was solvent or not, because, “when William Hoefling, Sr., died, the homestead descended and vested in his widow and children, free of any claims of any kind against his estate. It passed forever' beyond tbe reach of creditors, and the loss of its homestead character could ■not:instill life'into an invalid lien, whether - the same was evidenced by mortgage or oth.er instrument, or by a judgment”- — and that, . if plaintiffs in error did not so contend, “they are in no better position when they claim that a creditor’s lien, which had not attached to the homestead before, arose when the abandonment took place,” and accordingly reversed said judgment of the district court in favor of Mary Hoefling, and decreed that she take nothing by her cross-action, that , said lot 9 be partitioned, one half to Dorothea, and .the other half to said children and grandchildren of decedent, and L. Thulemeyer, who bought a child’s share, in the proportions indicated in said judgment of the district court, and that said property be sold for such partition, and the proceeds distributed among said owners according to their said respective shares.

Mary Hoefling and those claiming under her, as stated, alone applied for a writ of ■.error, which was granted. They complain, i first, of the action of the Court of Civil Appeals in treating the estate of said decedent as insolvent, and, secondly, of. its holding .that, whether said estate was solvent or insolvent, the homestead property at his death descended to and vested in his heirs, exempt from his debts, and forever beyond the reach of his creditors', and that consequently, upon abandonment of the homestead by the widow, plaintiffs in error, as creditors of his estate, had no right to subject said property to payment of their said claim. In support of their said first ground of complaint, plaintiffs in error point out the facts that no issue as to solvency or insolvency of the estate was pleaded or submitted to the jury, and contend that no such issue was made .by the evidence. . As to that entire phase of this case, we deem it sufficient to say this: It is obvious that, if the Court of Civil Appeals be correct in its view that it is wholly immaterial whether said-homestead was solvent or ■insolvent, its .action in treating the estate as insolvent resulted in no practical injury to plaintiffs in error, so, in testing their rights .in the premises, we will give thém full benefit of their contention upon that point, and will consider their said second ground of error upon the assumption that said estate was in fact solvent.

. Unquestionably,-under our present Constitution and statutes and the decisions of this- court, whenever the head of a family dies intestate,- leaving surviving him one or more constituents of the family, • such as a widow, or a minor child, or an unmarried, daughter remaining with'the family, and Ms, estate is insolvent, his homestead property, whether it be set apart by the probate court for the use and benefit of such surviving constituent or constituents of the family or not, descends and vests in all the heirs of such decedent, in accordance with the provisions of our general statute of descent and distribution, subject, however, to the constitutional and statutory right of the widow and of the guardian of the minor children of the decedent to use and occupy it as a home, but absolutely exempt from any and all present or future liability for such decedent’s debts, and so forever free from all claims of his creditors, whether they be approved by the probate court or not, except such claims as our Constitution permits to be secured by a lien upon the homestead; and that status, in so far as rights of general creditors of such decedent are concerned, cannot possibly be affected by subsequent voluntary sale or abandonment of such homestead property. American Bonding Company of Baltimore v. Logan, 166 S. W. 1132, decided on a former day of this term, and cases cited. But does the same rule apply where such estate is solvent? If so, said judgment of the Court of Civil Appeals should be affirmed.

In Givens v. Hudson, 64 Tex. 471, and in Roots v. Robertson, Adm’r, 93 Tex. 365, 55 S. W. 308, the case turned upon the point that no such constituent of the family survived the deceased owner of the homestead; consequently all question as to solvency or insolvency of his estate was wholly immaterial. See, also, Phillips v. Price, 12 Tex. Civ. App. 408, 34 S. W. 784; Wilkins v. Briggs, 48 Tex. Civ. App. 596, 107 S. W. 135.

Hall v. Fields, 81 Tex. 553, 17 S. W. 82, dealt with the rights of the decedent’s divorced wife and of their minor children as against the rights of a purchaser of homestead property from the executor of decedent’s will. The case did not involve rights of his creditors.

McAllister v. Godbold (Civ. App.) 29 S. W. 417, does not disclose whether the estate of the testator was solvent or not; moreover, that appeal was dismissed by the Court of Civil Appeals for want of a sufficient appeal bond.

In Green v. Crow, 17 Tex. 180, the question now before us was expressly pretermitted as not material to the decision, because the estate was insolvent.

And in each of the following cases, which arose under our present Constitution, the estate of the decedent was likewise insolvent; Rainey v. Chambers, 56 Tex. 17; Davis v. McCartney, 64 Tex. 584; Zwernemann v. Von Rosenberg, Adm’r, 76 Tex. 522, 13 S. W. 485; Childers v. Henderson & Co., 76 Tex. 664, 13 S. W. 481; Lacy v. Lockett, 82 Tex. 190, 17 S. W. 916; Cameron v. Morris, 83 Tex. 14, 18 S. W. 422; Ford v. Sims, 93 Tex. 586, 57 S. W. 20.

That is also true as to' each of the following cases under that Constitution; the references being to decisions by our Courts of Civil Appeals: West v. West, 9 Tex. Civ. App. 475, 29 S. W. 242; Stephenson v. Marsalis, 11 Tex. Civ. App. 162, 33 S. W. 383; Krueger v. Wolf, 12 Tex. Civ. App. 167, 33 S. W. 663; Simms v. Hixon, 65 S. W. 36; Dorman v. Grace, 57 Tex. Civ. App. 386, 122 S. W. 401; Davie v. Green, 132 S. W. 874.

Tire estate was likewise insolvent in each, oí tke following cases, which, arose under earlier constitutional provisions: Green v. Crow, 17 Tex. 180; Reeves v. Petty, 44 Tex. 249; Horn v. Arnold, 52 Tex. 161; Scott v. Cunningham, 60 Tex. 566; Watson v. Rainey, 69 Tex. 319, 6 S. W. 840; Gaines v. Gaines, 4 Tex. Civ. App. 408, 23 S. W. 465.

Plaintiffs in error, who appear here in the attitude of general outside creditors of said estate, contend that the decision of this court in Moore & Son v. Moore, 89 Tex. 29, 33 S. W. 217, is squarely in point upon the question before us, and should be regarded as conclusive of this issue; but to neither of those suggestions can we agree. That suit was brought in the district court for partition of the estate of a decedent, embracing certain lands and personal property; all being community property of his second marriage. Plaintiffs were the widow and son of decedent, and defendants were his child and grandchildren of a former marriage. The Court of Civil Appeals upheld the jurisdiction of the district court upon the theory that there were no outside creditors — plaintiff’s suit for partition in that court amounting to a representation by them that there were no debts against the estate, and conse-sequently no necessity for administration through the probate court, and the allegation in the answer of the defendants being that there were no debts against the estate other than that which some of the defendants asserted in favor of themselves, which allegation of the defendants was not controverted by either pleading or evidence — and also held that, having thus acquired jurisdiction over the subjecfmatter, and to avoid a multiplicity of suits among the parties, the trial court properly proceeded to an adjustment of the equities of the parties as among themselves as joint or common owners of all the property, and to a final partition thereof. The widow, who was the sole such constituent of decedent’s family who survived him, was one of the plaintiffs, as we have seen, who filed suit for partition of the property. There was no pleading to the effect that she was entitled to, or that there existed in fact, a homestead or other exempt property. The widow did not ask to have the homestead or other property set apart to her as exempt. As to homestead and other exempt property, the Court of Civil Appeals found that “there was no evidence in regard to it, and the verdict made no finding on the subject.” Such being the state of the pleading and the evidence with regard to homestead and exemptions, the Court of Civil Appeals treated as fundamental error the action of the trial court in setting apart to the widow a homestead and other property as exempt, there being no assignment of error thereon, and, in anticipation of another trial of that cause below, directed that, “if it should be alleged and proved that there-existed a-homestead and exempt property in kind, to which the widow is entitled, the court would properly, not include them in the partition.” And,so the Court of Civil Appeals, evidently treating the exemption question as not really existing in the case, as then presented, as to either the homestead or other property described in plaintiffs’ petition, reversed the judgment of the trial court, which had undertaken to set apart to the widow a homestead and certain other property as exempt, and proceeded to remand that ease to the trial court for a partition of all the property among the heirs, directing, However, an adjustment of certain equities which arose upon the claim of the child and grandchildren of decedent’s first marriage, growing out of his failure to pay over their share of the proceeds of a sale by him of a tract of land which was community property of that marriage.

This court, in an opinion by Associate Justice Brown, now Chief Justice, affirmed that decision of the Court of Civil Appeals, but held, expressly, that by filing her said suit for partition of all of said property, including that which in this Court was claimed by her as homestead, she waived her right to have the homestead' and personal property exempt from forced sale set apart to her use, and all of said property thereupon became subject to partition among the heirs, and that in such partition the-aforesaid equities should be adjusted as therein directed. It is' true that, in deciding that case, this courti said, “Upon the death-' of Moore his estate vested in his heirs and his surviving wife, subject to the payment-of his debts;” but evidently that was said in the light of the above-mentioned facts of that ease, particularly those relating to homestead and exemptions, involving absence of- pleading, proof, and verdict thereon, and upon the theory that all questions as to homestead or exemptions had been practically eliminated.

There are various other Texas decisions which bear more or less upon the question which we are now considering; but diligent search has failed to reveal even a single case" in this court, or in any of our eight Courts of Civil Appeals, in which the point here involved is shown to have been squarely presented by reason of the solvency of the estate, or expressly decided.

It is therefore necessary, in determining the issue in this case, to briefly consider, anew, various provisions of our existing state Constitution and statutes which bear upon- it, in doing which we will be aided greatly by numerous former decisions ■ construing them in cases of insolvent estates, and in some degree by decisions construing earlier statutes under previous Constitutions, as applied to insolvent estates.

By sections 50, 51, and 52 of article 16 of the present Constitution of Texas of 1876, the homestead of a family.'is defined; it is exempted from liability for all debts, with certain exceptions; and the course of its descent is indicated.

A rural homestead consists of “not more than two hundred acres of land, with the improvements thereon”; an urban homestead, of “lot or lots not to exceed in value five thousand dollars at the time of their designation as the homestead, without reference to the value of any improvements thereon." Section 51. See, also, R. S. 1911, art. 3786 (2396) (2336).

Such homestead is “protected from forced sale, for the payment of all debts except for the purchase money thereof, or a part of such purchase money, the taxes due thereon, or for work and material used thereon.” Section 50. See, also, R. S. 1911, art. 7637 (5183).

It is provided that “on 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.” Section 52. This court has uniformly held that the sole purpose of the foregoing provisions of said section 52 was to change the rule of descent, as declared in Horn v. Arnold, 52 Tex. 164, under the Probate Act of 1848, and to make the rule of descent of homestead property thereafter uniform, regardless of whether the estate of the deceased father was solvent or insolvent. It did not deal with exemptions, or with rights of creuuors. Bonding Company v. Logan, supra, and cases cited.

In pursuance of the general design to protect the family homestead' from forced sale, except as indicated above, a conception which had its origin in Texas, our Legislature has enacted various laws, including the following which were in force when the case at bar arose, and now remains operative:

Art. 3235. (1869) (1817) — “When a person dies, leaving a lawful will, all of his estate devised or bequeathed by such will shall vest immediately in the devisees or legatees; and all the estate of such person, not devised or bequeathed, shall vest immediately in his heirs at law; but all of such estate, whether devised or bequeathed or not, except such as may be exempted by law from the payment of debts, * * * of such testator or intestate; and, whenever a person dies intestate, all of his estate shall vest immediately in his heirs at law, but with the exceptions aforesaid shall still be liable and subject in their hands to the payment of the debts of the intestate; but, upon the issuance of letters testamentary or of administration upon any such estate, the executor or administrator shall have the right to the possession of the estate as it existed at the death of the'testator or intestate, with the exception aforesaid; and it shall be the duty of such executor or administrator to recover possession of and hold such estate in trust to be disposed of in accordance with law.” Act of August 9, 1876.
Art. 3413. (2046) (1993) — “At the first term of the court after an inventory, appraisement and list of claims have been returned, it shall be the duty of the court, by an order entered upon the minutes, to set apart for the use and benefit of the widow and minor children and unmarried daughters remaining with the family of the deceased all such property of the estate as may be exempt from execution or forced sale by the Constitution and laws of the state, with the exception of any exemption of one year’s supply of provisions.” Id.
Art. 3414. (2047) (1994) — “In case there should not be among the effects of the deceased all or any of the specific articles so exempted, it shall be the duty of the court to make a reasonable allowance in lieu thereof, to be paid to such widow and children, or such of them as there may be, as hereinafter directed.”
Art. 3421. (2054) (2001) — “If, upon a final settlement of such estate, it shall appear that the same is solvent, the exempted property, except the homestead, which has been set apart to the widow or children, or both, together with any allowance that has been received by them in lieu thereof, shall be subject to partition and distribution among the heirs and distributees of such estate in like manner as the other property of the estate.” Id.
Art. 3422. (2055) (2002) — “Should the estate, upon final settlement, prove to be insolvent, the title of the widow and children to all the property and allowances set apart or paid to them, under the provisions of this and of the preceding chapter, shall be absolute, and shall not be taken for any of the debts of the estate, except as hereinafter provided.” Id.
Art. 3423. (2056) (2003) — “In ascertaining whether an estate is solvent or insolvent, the exempt property set apart to the widow or children, or the allowance in lieu thereof, and the allowance provided for in the preceding chapter, shall not be estimated or considered as assets of the estate.” Id.
Art. 3424. (2057) (2004) — “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.” Const, art. 16, § 52.
Art. 3425. (205S) (2005) — “When the widow dies or sells her interest in the homestead, or elects to no longer use or occupy the same as a homestead, and when the proper court no longer permits the guardian of the minor children to use and occupy the same as a homestead, it may be partitioned among the respective owners thereof in like manner as other property held in common.” Act Aug. 9, 1876.
Art. 3426. (2059) (2006) — “The homestead rights of the widow and children of deceased are the same whether the homestead be the separate property of the deceased or community property between the widow and the deceased, and the respective interests of such widow and children shall be the same in one case as in the other.” Id.
Art. 3427. (2060) (2007) — “The homestead shall not be liable for the payment of any of the debts of the estate, except for the purchase money thereof, the taxes due thereon or for work and material used in constructing improvements thereon; and in this last case only when the work and material are contracted for in writing, with the consent of the wife, given in the same manner as required in making a sale and conveyance of the homestead.” Const, art. 16, § 50.
Art. 3428. (2061) (2008) — “The exempted property, other than the homestead, or any allowance made in lieu thereof, shall be liable for the payment of the funeral expenses and the expenses of last sickness of deceased, when presented within the time prescribed therefor; but such property shall not be liable for any other debts of the estate.” Act of Aug. 9, 1876.

Several of the above-quoted articles were amendments of, or based upon, statutes enacted prior to Act Aug. 9, 1876 (Laws 1876, e. 84), and should be considered in connection with them and decisions thereunder. Act Jan. 9, 1843, Pasch. Dig. art. 1061; Act May 11, 1846, Pasch. Dig. art. 1107; Act March 20, 1848, Pasch. Dig. art. 1305; Horn v. Arnold, 52 Tex. 161, and cases cited; Act Aug. 15, 1870, Pasch. Dig. art. 5487; Scott v. Cunningham, 60 Tex. 566. See, also, Zwememann v. Von Rosenberg, 76 Tex. 522, 13 S. W. 485, under said Constitution of 1876.

Regardless of all questions, as to solvency or insolvency, a surviving spouse, whether husband or wife, is entitled to hold and use the homestead, exempt from forced sale for payment of his or her own debts, so long as he or she may choose to do so, even though such spouse be the sole remaining member of the family. Kessler v. Draub, 52 Tex. 575, 36 Am. Rep. 727; Blum v. Gaines, 57 Tex. 119; Trawick v. Harris, 8 Tex. 312; Zapp v. Strohmeyer, 75 Tex. 639, 13 S. W. 9; Childers v. Henderson, 76 Tex. 664, 13 S. W. 481. However, subsequent abandonment of the homestead by either spouse would end the right of such one to further claim exemption against debts of that character. Cox v. Shropshire, 25 Tex. 113; Shannon v. Gray, 59 Tex. 251; O’Brien v. Woeltz, 94 Tex. 148, 58 S. W. 943, 59 S. W. 535, 86 Am. St. Rep. 829.

But exemption of the homestead from debts of the deceased husband, where the wife, or a minor child, or an unmarried daughter remaining with the family, survives the decedent, is a different matter, and rests upon principles, which have their roots in the Constitution and in the above-mentioned statutes, and which are discussed at length in the Logan Case, and in cases therein cited; those discussions being, however, with special reference to insolvent estates.

The main general purpose of our Constitution and laws in this regard has been to exempt the homestead from forced sale, except for purchase money, taxes, and improvements thereon. The three exceptions emphasize that purpose. If the lien for any such item be properly fixed, it may be enforced against homestead property of a decedent, just as against any other property, whether the estate of such decedent be solvent or not. Eliminating those three items from the equation, we have left the main purpose as to homesteads. Its conception is philanthropic and humanitarian; its outline is bold and comforting, like “the shadow of a great rock in a weary land”; its operation and effect are coextensive and contemporaneous with lawful possession and exercise of homestead rights. Perhaps as supplying unequivocal and possibly added reason in support of the decision announced therein, many, and probably all, of the adjudicated cases, as we have seen, have mentioned, and some of them have stressed possibly, the fact that the estate of the decedent was insolvent; but, upon principle, we can see no sufficient reason for resting any of those decisions upon that point alone. None has ever been suggested, so far as we know. The issue of solvency or' insolvency is not treated by the Constitution or the statutes as a proper basis for that distinction. Even equity makes no appeal in the premises; her pleading voice is stilled by reason of the fact that, except said three eliminated items, which must, in any event, be paid, no creditor of the decedent can justly or legally say that he extended credit based upon the homestead property in the sense that he expected, in any contingency not involving abandonment thereof, to be able to subject the homestead property to his debt.

Upon consideration of the opinions in said cases, it is apparent from some of them that some confusion of ideas, and of principles as well, has grown out of the fact that article 3422 expressly provides that, in insolvent estates, “the title of the widow and children to all the property and allowances set apart * * * to them, under the provisions of this and of the preceding chapter, shall be absolute, and shall not be taken for any of the debts of the estate, except as hereinafter provided;” while article 3421, supra, which relates to solvent estates, makes no corresponding declaration concerning “title” to the exempt property, and does not provide that such exempt property (with said exceptions) “shall not be taken for any debts of the estate.”

Distinguished counsel for plaintiffs in error insist that this presents a proper instance for application of the well-known rule of statutory construction, “Expressio unis exclusio alterius est;” but we do not think so.

The difficulty and confusion which grow out of said difference between said article 3422 and said article 3421 disappear when a careful analysis of said article 3422 is made, remembering that the former had its inception in section 45 of the probate Act of March 20, 1848 (3 Gam. Laws, p. 249), one original and primary purpose of which was to prescribe a rule for descent, though not of distribution, of exempt property, including the homestead, under circumstances therein defined, a purpose which was declared in Horn v. Arnold, 52 Tex. 161, and cases cited, prior to the adoption of our present Constitution, and abruptly ended, as this court has repeatedly held, by such adoption; it being provided, as we have seen in section 52 thereof, supra, that the course of descent of all homestead property in cases of intestacy shall thenceforth be the same as that of other property, and as fixed by the general statute of descent and distribution.

Although our present Constitution, including said section 52, was ratified by the people of Texas on February 15,1876, and thereupon became operative, and despite the direction given by said section 52 as to the course of descent of homestead property, at variance, as we have seen, with the provisions of said Act of 1848, the Legislature carried forward, • into said act of August 9, 1876, substantially ■the same provision as to the course of descent "the title of homestead property; where the estate proves insolvent, expressly declaring that “the title of the widow and children to all the property and allowances set apart or paid to them, under the provisions of this and of the preceding chapter shall be absolute,” and then, as if by way of declaring a restriction or limitation upon the effect of the foregoing sweeping language relating to such vestiture of absolute title, added the provision that such exempt property and allowances “shall not be taken away except as hereinafter provided,” the exceptions referred to being for purchase-money taxes, and work or material. which are set out in said article 3-127, relating to “homesteads,” and “funeral expenses and expenses of last sickness of deceased, when presented within the time therefor,” relating, not to homesteads, but to other “exempted property” and allowances in lieu thereof. In other words, the primary purpose of the words in article 3422 which deal with exemptions was, not to declare an exemption which did not otherwise or theretofore exist, and limit that exemption to insolvent estates, but to limit and restrict the force and effect of the preceding provisions of that article which declare a rule of descent- of homestead property.

After. said rule of ■ descent was declared unconstitutional, in 1890, because of conflict with said section 52 (76 Tex. 522, 13 S. W. 485), said words of limitation were allowed to remain, and still appear, upon the statute book, although, in so far at least as homestead property is conperned,- they are “as idle as a. painted ship upon a painted ocean,” unless it be to clearly express, as to insolvent estates, a rjile concerning exemptions of homestead property which existed aforetime as to that character of property, whether the estate be solvent or insolvent, and which forms.a highly important feature of the great design and plan of homestead protection as wrought out in our Constitution and statutes, even if said article 3422 be omitted from consideration.

Indeed, all of the provisions of said article 3422, including the above-mentioned unconstitutional portion thereof, have been permitted to; remain upon our statute book, as so enacted in 1876, through more than a generation, and through the three general revisions of 1879, 1895, and Í911, although in numerous opinions, beginning in 1890 with the Zwernemann Case in 76 Tex. 522, 13 S. W. 485, this court has unequivocally declared their uneon-stitutionality. See cases cited in the Logan Case, supra.

It is true that the other portions — the live portions — of said article 3422, which so declare said limitation upon the rule of descent thereinbefore set out, are not violative of, but are in perfect harmony with, said provisions of our existing Constitution, and with all other existing statutes concerning exemptions, and so, as a matter of course, have not been held invalid. But it by no means follows logically that, when an estate is solvent, the converse is true, or that the rule as to homesteads is otherwise.

The rule to be applied to homestead property when the estate is solvent is a matter to be determined by other considerations, from a study of our Constitution and all related statutes, including said article 3422 as an incidental, but not as a vitally essential, part.

In view of the general and comprehensive design of homestead protection thus outlined in our Constitution and worked out in detail in our statutes, which were themselves enacted in the light of earlier statutes under former Constitutions and decisions construing them, we regard it as clear, upon principle, and accordingly hold, that our laws concerning exemption of homesteads relate to solvent and to insolvent estates alike, and that in no event in the case at bar, under the ascertained facts, can the homestead property of the decedent, Williám Hoefling, Sr., be subjected to the debt of plaintiffs in error.

■ No reason has been suggested why, if his estate is in fact solvent, excluding the homestead as provided by said article 3423, said debt may not be enforced against such other portion of said estate; but upon that point we do not feel called upon to say anything further, as it is not in issue. .

Said judgment of the Court of Civil Appeals is affirmed.


source: Caselaw Access Project

author: BROWN, C. J.

license: Public Domain

text:
    MALDANADO v. LANE, Comptroller.
    (No. 2605.)
    (Supreme Court of Texas.
    May 20, 1914.)
    COURTS (| 207) — JURISDICTION OF SUPREME Court — Mandamus.
    Where respondent denies under oath the material allegations in the application for mandamus, the Supreme Court cannot try the issues of fact raised, but must dismiss the application.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. § 756; Dec. Dig. § 207.]
    Application for mandamus on the relation of E. Maldanado against W. P. Lane, Comptroller.
    Application dismissed.
    Jas. D. Walthall, of San Antonio, for relator. B. P. Looney, Atty. Gen., and W. A. Keeling, Asst. Atty. Gen., for respondent.

       other cases see same- topic and section NUMBER, in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   BROWN, C. J.

The respondent has under oath denied the material allegations of the applicant for mandamus, which makes issues of. fact which this court cannot try; therefore the application is dismissed.


text:
    COMBES et al. v. STRINGER et al.
    (No. 2355.)
    (Supreme Court of Texas.
    June 3, 1914.)
    1. Stipulations (§ 14) — Construction and Operation — Stipulations as to Evidence.
    In trespass to try title to a tract of land, 160 acres of which defendant claimed by limitation, it was agreed by the parties that plaintiffs had the record title, subject to be defeated only by defendant’s claim of limitation. Defendant introduced evidence of a survey of ICO acres by his predecessor in 1894 and of possession of a portion thereof for the statutory period. Plaintiff introduced a number of deeds, the first of which' was dated in 1899, and evidence of possession of a part of the tract by his predecessor in title before the statutory period had run in defendant’s favor, and it was then admitted by the parties that the chain of title derived through such deeds was the only chain of title under which plaintiffs claimed. Held that, giving effect to both these agreements, it was admitted that plaintiffs’ record title was derived through the deed made in 1899, and as a consequence that, when his predecessor in title took possession subsequent to 1899, he then owned the record title.
    [Ed. Note. — For other cases, see Stipulations, Cent. Dig. §§ 24-37; Dec. Dig. § 14.]
    2. Adverse Possession (§ 100) — Extent op Possession.
    A party, who surveyed 160 acres of land and took actual possession of a small portion thereof, acquired title by limitation only to the portion in his actual possession, where, before limitations had run, the owner of the record title to a tract, including such 160 acres, took possession of a part thereof, thereby acquiring constructive possession of the whole tract except that in the actual possession' of the adverse claimant.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 547-574; Dec. Dig. § 100.]
    3. Appeal and Error (§ 1175) — Disposition op Cause — Rendering Final Judgment.
    In trespass to try title, in which a, judgment for defendant for 160 acres in the tract involved in favor of defendant was reversed on the ground that he acquired title by limitations only to the land of which he had actual possession, though defendant by his pleading and evidence furnished no field notes or other sufficient description of the land of which he held actual possession for the statutory period, he would be given an opportunity to furnish such description instead of rendering final judgment in plaintiffs’ favor for the whole tract.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4573-4587; Dec. Dig. § 1175.]
    Error to Court of Civil Appeals of Third Supreme Judicial District.
    Action by S. M. Combes and another against J. Z. Stringer and others. A judgment in favor of the defendant named was affirmed by the Court of Civil Appeals (142 S. W. 668) and plaintiffs bring error.
    Reversed and remanded.
    Andrews, Ball & Streetman, of Houston, for plaintiffs in error. C. W. Nugent and W. N. Foster, both of Conroe, .for defendant in error.

      For other eases see same topic and section NUMBER in Dec. Dig. & Am, Dig. Key-No. Series & Rep’r Indexes

   HAWKINS, J.

This action was originally filed on September 8, 1906, by S. M. Combes and F. A. Combes, in the United States Court' at Houston, but, upon pleas to its jurisdiction being filed, an agreement was made under which they refiled their suit on November 25, 1906, in the district court of Montgomery county, under a stipulation that the rights of the parties should be determined as though this suit had been originally filed therein on September 8, 1906.

The action is one of trespass to try title to two tracts of land; the first embracing 2,289% acres and the second 587% acres, out of the T. J. Williams survey in Montgomery county. Defendants Stringer and Prewitt answered, separately, each disclaiming all of the land sued for except the tract of 160 acres described by metes and bounds which he claimed- under the statute of limi-, tation of ten years; each describing and claiming a certain piece of land different from that described and claimed by the other. The other defendants, all of whom asserted contingent interests as attorneys’ fees, claimed subject to the rights of Stringer and Prewitt, respectively.

The case was tried without a jury. The trial court rendered judgment for plaintiffs for all of the lands sued for except the tract of 160 acres so claimed by Stringer which it awarded to him. From so much of said judgment as was in Stringer’s favor, plaintiffs appealed to the Court of Civil Appeals, which affirmed the judgment of the trial court, whereupon appellants applied to this court for a writ of error, which was granted.

The questions which are presented here arise under Stringer’s plea of limitation and two agreements of the parties and certain other evidence, as follows, viz.:

Upon the trial the following agreement of the parties was introduced:

“It is agreed that the plaintiffs in the case have the record title to the land in controversy, subject to be defeated only by the claim of limitation as pleaded by the defendants, and that, unless they have title by limitation, plaintiffs are entitled to recover the land sued for.”

Plaintiffs thereupon rested their case, after which defendants undertook to show title by limitation. There was evidence which showed that MeShan, from whom Stringer bought, had said 160 acres surveyed out first in 1894, and that the only portion of it which had ever been held in actual possession was. a small inclosed tract, the precise quantity and description of which are not definitely shown by the pleadings or evidence.

After the introduction by defendant Stringer of his testimony in support of his plea of limitation, plaintiffs introduced in evidence five written instruments covering said large tract of 2,289% acres, which included the. 160 acres claimed by Stringer, as follows: (1) Deed dated April 1, 1899, filed for record December 7, 1899, from Margaret Brown and husband, Edmund Brown, to H. W. Downey. Defendants proved that, just after purchasing said large tract, Downey, through a tenant, took possession of a part of it and put camps and buildings thereon and men therein to hold said large tract for him, claiming it under said recorded deed to him. (2) A release of the vendor’s lien retained in said deed to Downey. (3) A deed from said Downey and his brother to the Ives Lumber Company, dated November 4, 1899, recorded December 7, 1899. (4) A deed from the Ives Lumber Company to Rogers, dated March 26, 1904, recorded January 24, 1905. (5) A deed from Rogers to plaintiffs, dated January 18, 1905, recorded January 24, 1905.

■ Thereupon the following agreement was made by the parties:

“It is admitted that the chain of title derived through the deeds introduced in evidence by plaintiffs, consisting in part of the last foregoing five instruments, is the only chain of title under which P. A. and S. M. Combes claim this land” — the reference therein being to the aforesaid five instruments.

Plaintiffs in error contend that Stringer’s title by limitation should be restricted to the land of which he and those under whom he claims held actual possession for the statutory period, and should not be extended to include enough more to make up 160 acres. In support of that contention they say the legal effect of said two agreements of the parties is to conclusively show that said deed to Downey carried the record title to said entire 2,289%-acre tract, embracing all the.land claimed by Stringer; and thereupon they argue that inasmuch as Downey went into actual possession of a portion of said large tract under that recorded deed before the completion of said period of limitation of ten years relied upon by Stringer, and thereunder asserted title to all of said large tract, Downey’s possession should be treated as extended, by operation of law, to the boundaries of said large tract, excepting only said small inclosed tract which was so held in actual and adverse possession, and that such constructive possession by Down-ey and those claiming under him was superior to the constructive possession of Stringer and those under whom he claims of so much of said small inclosed tract, the statutory complement of 160 acres, and stopped the running of the statute of limitations in favor of -Stringer and those under whom he claims as to all of said 160 acres excepting said small inclosed tract so held in actual adverse possession.

The action of the Court of Civil Appeals thereon, and the reasoning upon which it was based, are shown in the following excerpt from its opinion in this case, which may be found in 142 S. W. 668:

“By the second assignment it is insisted that the court erred in rendering judgment for ap-pellee, because it is asserted that plaintiffs in 1899 acquired title to the 2,289% acres of land, and went into possession of a portion thereof, at which time it appears that appellee was only in actual possession of some 12 or 15 acres of the 160 acres claimed by him, and that therefore appellants’ constructive possession extended to their entire tract of 2,289% acres, of which the 160 acres formed a part, for which reason they assert appellee was not entitled to recover except that part thereof which he had actually inclosed, to wit, some 12 or 15 acres. Citing, in support of this contention, Evitts v. Roth, 61 Tex. 81; Whitehead v. Foley, 28 Tex. 289; Hunnicutt v. Peyton, 102 U. S. 333 [26 L. Ed. 113]. This contention would be true if it were conceded that appellants had title to the 2,289% acres at the time they took possession of such portion thereof in 1899, but the record fails to disclose that appellants had title to said land at said time, unless it can be said that the agreement above mentioned gave them such title; but by it ap-pellees insist that they only admitted that the plaintiffs in the case had record title to the land in controversy at the time that suit was filed. This agreement does not state when they acquired such record title; and, in the absence of such statement, we are inclined to believe that it should be construed to mean that it was only intended to be admitted thereby that plaintiff, at the time that the case was tried, had the record title to the land in controversy. And, as the suit was not brought until 1906, appellee’s title to the 160 acres was complete by limitation at the time the agreement was made, for which reason this assignment is overruled.”

The issue turns upon the effect to be given to said agreements. We find no conflict between them; effect should be given to both. Together they admit that, at the time of the trial, plaintiffs had the record title to the land in controversy; that- said title was derived through said deed to Downey; and, as a necessary consequence, that said deed carried the record title to said land. Under that construction of said agreements, and under the other facts shown by the evidence, it follows, and the Court of Civil Appeals, in that view of the matter, concedes, in effect, that said contention and argument of plaintiffs in error are sound. Stringer was not entitled to a judgment in his favor for any land other than that which he and those under whom he claims, had held in actual possession for ten years prior to the filing of this action. Whitehead v. Foley, 28 Tex. 268; Evitts v. Roth, 61 Tex. 81, and authorities therein cited; Parker v. Baines, 65 Tex. 605.

Plaintiffs in error further contend that, because the pleading and evidence failed to furnish field notes or other sufficient description of such portion of said land as was so held in actual possession for said statutory period, no judgment therefor in favor of Stringer can be framed, and that, as a consequence, we should here render judgment against him, as to it, citing the" following decisions of Courts of Civil Appeals: Wilcoxon v. Howard, 26 Tex. Civ. App. 281, 62 S. W. 802, 63 S. W. 938; Sparks v. Hall, 29 Tex. Civ. App. 177, 67 S. W. 916; Thompson v. Dutton, 69 S. W. 996. We do not think so. We believe that, while the more commendable practice would have been for Stringer to have seasonably presented to the trial court, in his pleading and through evidence, definite.field notes or description of such land as had been so held in actual possession for said period, the more equitable and better practice here, under the circumstances, is to yet permit him to do so.

The judgments of the Court of Civil Appeals and of the district court will be reversed, and the cause remanded tó said trial court.

Reversed and remanded.