Philleo v. Smalley , 23 Tex. 498 ( 1859 )

Bell, J.

We do not think it necessary, in this case, to decide, whether or not the execution law of 1839, so far as the same secures to every citizen, or head of a family, a homestead, is in force, since the adoption of the state constitution. The statute referred to, has been held by this court to be in force, so far as to exempt the personal property, named in the statute, from execution, whether the same belongs to single persons or not. The state constitution contains a distinct provision on the subject of homesteads; and it will be worthy of consideration, whenever the question is distinctly presented to this court, whether or not the execution law of 1839, is repealed by the provisions of the constitution, so far as it exempts homesteads from forced sale.

We think, that the facts in the present case show, that the premises in controversy in this suit, did not constitute the homestead of the appellee. He used the premises for business purposes, and slept in one of the rooms of the house, but at the same time took his meals habitually at another place. A man’s homestead must be his place of residence; the place where he. lives; the place where he usually sleeps and eats; where he surrounds himself with the ordinary insignia of home, and where he may enjoy its immunities and privacy. We do not think that the facts in this case show, that the appellee used the premises as a homestead, at the time of the sale under execution. The judgment is therefore reversed, and such judgment will be rendered by this court, as ought to have been rendered in the court below.

Judgment reversed and rendered.