Franklin v. Coffee , 18 Tex. 413 ( 1857 )

Hemphill, Ch. J.

The appellant, Nicholas Franklin, was the owner of a tract of land a few miles from the town of Lagrange. He had not resided upon the land before his marriage ; and since his marriage lie had lived, under some arrangement, at the house of his mother-in-law in the town. Eight or ten years ago there was a small cabin built upon the land and a patch of two or three acres enclosed. There was no evidence that the improvements were made by'or for Franklin. A witness thought that another person, whom he named, made the improvements. A free negro occupied the cabin for a short time. The improvements, viz : fence and cabin, remained on the land only one season, and no one would now know that the land had ever been improved. The land was sold at Sheriff’s sale, and appellants, viz : Franklin and his wife, sue to set aside the sale, on the ground that the land was the only tract owned by them; that it was their homestead, and as such was exempted from forced sale under execution. It was in proof that Franklin had appeared at the Sheriff's sale and given notice that whoever bought the land would buy alaw-suit.

A jury was waived, and the cause being submitted to the Court, judgment was given for the defendant.

That the homestead exemption was founded upon principles of the soundest policy cannot be questioned. Its design was not only to protect citizens and their families, from the miseries and dangers of destitution, but also to cherish and support 1 the bosoms of individuals, those feelings of sublime indejpendence which are so essential to the maintenance of free in-' stitutions.

These are noble objects ; and such construction consistent with the spirit of the provision should be given, as would promote and secure the purpose intended. But the exemption guaranteed by law and the Constitution, is based upon the supposition that there is a homestead in fact, in actual existence ; that there is a home in which the citizen and his family are or might be settled. We are called upon in this suit to extend the exemption and declare that land upon which the owner never resided, never used or attempted or was preparing to use as a home, and which is in fact wild and uncultivated, should be regarded as a homestead, and as such protected from execution. We cannot assent to the proposition that this land should be considered as a homestead. The proposition would have been sound, had the Constitution declared that two hundred acres of land belonging to a head of a family should be exempted from forced sale. But such is not the provision. The homestead, not to exceed two hundred acres, is declared to be exempted. There must be a homestead over which the Constitution may throw its shield, and not land merely, upon which the owner may or may not put his cabin, mansion or improvements, and claim as a home.

A homestead necessarily includes the idea of a house for residence or mansion house. On town or city lots it cannot exceed a certain value. But on the rural homestead there is no such restriction. The dwelling may be a splendid mansion, or a mere cabin or tent, open to the winds and rains of heaven. If there be either, it is under the protection of the law ; but there must be a home residence before the two hun. dred adjoining acres can be claimed as a homestead. Where a home, residence or settlement has once been acquired on lands, it would not be necessary that there should be continuous, actual occupation, to secure the land from forced sale. If the citizen or family should leave in search of another home, the first would remain until the second should be acquired. If a husband remove his wife and family into another county, and without providing them a home, abandon his wife, she might again resume possession of the homestead. (Fullerton v. Boyle, Austin, December, 1856, supra.) And no absence, on pleasure or business, temporary in its nature, and not designed as an abandonment, would work a forfeiture of the right. Nor would it be necessary to secure the exemption, that a house should be built or improvements made. But there must be a preparation to improve, and this must be of such a character and to such an extent as to manifest beyond doubt, the intention to com. píete the improvements and reside upon the place as a home.

By law, various articles, in addition to the homestead, are exempt from execution, as viz: furniture, tools of trade, cows hogs, &c. But these must exist in fact, before the benefit can be claimed. The law provides that these articles shall be secured to the debtor out of his property, but that is only' in the event that he is the owner of such articles. This rule pervades the entire exemption. It becomes operative only when the specific articles which it covers are in actual existence as the property of the debtor.

The rule is reversed, where the claim is for the benefit of the widow and children out of the estate of the decedent. But that has no application where debtors are claiming exemption in their own right.

In this case, there was no house or home upon the land. The plaintiff had not resided there before or since his marriage. He had made no preparation, or done no acts which would evince a fixed intention and purpose to select and appropriate the place as a home ; and we are opinion that there is no error in the judgment, and that the same be affirmed.

Judgment affirmed.