Rockett v. Williams

BOND, Justice.

The appeal is from a judgment dissolving an injunction restraining G. A. Williams, a judgment creditor, and J. F. Brown, constable of Ellis county, Tex., from levying upon and selling a brick building situated on a lot in. the town of Ferris, Tex., alleged to be the business homestead of appellant, a judgment debtor of Williams.

The pleading raises the issue, and the evidence is undisputed, that appellant owns and is using a house and lot, permanently occupied by him and his family, as a home, and claimed as a homestead in the incorporated town of Waxahachie, Ellis county, Tex., and a- business homestead, the execution sale of which is sought to be enjoined, in the incorporated town of Ferris, Ellis county, Tex.; that Ferris is sixteen or eighteen miles from Waxahachie, with farming lands and other towns and villages intervening, and has its own municipal government. The combined values of the residence and business lots is not in excess of the sum of $5,000.

Appellant seeks review on the sole proposition that the storehouse property is exempt to him as his place of business, under section 51, art. 16, of the Constitution of the state of Texas, in that he has a right to a home for himself and family located in one urban community, Waxahachie, and likewise the right to that place of business in the other widely separated urban community, Ferris, and that both are exempt from execution sale.

It is the settled law of this state from a very early date that there can be but one resident homestead at a given time, and, in the case of an urban homestead, the business homestead is but a part of the urban designation. Miller v. Menke’s Widow and Heirs, 56 Tex. 539; Archibald v. Jacobs, 69 Tex. 248, 6 S. W. 177; Johnston et al. v. Martin, 81 Tex. 18, 16 S. W. 550; Grimes v. Cline (Tex. Civ. App.) 300 S. W. 235; Purdy v. Grove (Tex. Civ. App.) 35 S.W.(2d) 1078, 1081.

The limitation of a homestead in “a city, town or village” is not to the number, but the value of the lots, $5,000. The lots may not join or be contiguous to each other, but all must be used for the convenience or uses of the family and situated in “a city,” “a town,” or ‘‘a village,” a definite locality, and the value not to exceed the sum of- $5,000, to entitle the property to be impressed with homestead character. The lot or lots used as a business and resident homestead “in a city, town or village” is a unit, an urban homestead, and the lot or lots used for the business must have some connection in point of locality with the residence place, and not in a widely separated city, town, or village, in no manner forming one connected urban community.

The idea of a homestead carries with it a place of residence, a domicile, and all property used in connection with the residence, such as a place of business, garden, garage, office, or shop, must be located at the place of residence. In the case of a rural homestead, by the same provision of the Constitution is limited to 200 acres, which may consist of separate and widely disconnected tracts. There is no limitation, as is contemplated in an urban homestead, that the various tracts shall be situated in “a county,” “a district,” or some .designated locality, as in an urban homestead. It must, however, be rurally located, occupied by the claimant, and used for the purposes and conveniences of the family. If the head of the family or the family never resides on some part of the 200 acres, the property embraced in the claim of homestead is not exempt. The locality of the residence, in case of a rural homestead, is contemplated outside of urban communities, and of urban homestead within “a city, town or village,” “an aggregation of inhabitants and a collection of occupied dwellings and other buildings.” State ex rel. Wilke v. Stein et al. (Tex. Com. App.) 26 S.W.(2d) 182, 184. The constitutional provisions are clear that there may not be two homesteads, one of residence and another of business, but only one homestead, a part of which may be used “as a place to exercise the calling or business of the head of a family.” The business homestead is ⅝ contiguity of the resident homestead, and must be located within the resident urban community.

The constitutional provision (section 51, art. .16), defining “the homestead in a city, town or village, shall consist of lot, or lots, not to exceed in value, * * * ” excludes the idea that a resident homestead may exist in one city, town, or village and at the same time a business homestead exist in another and disconnected city, town, or village, and both be exempted from forced sale.

This question has been decided adversely to appellant’s contention by the Eastland Court of Civil Appeals in the case of Purdy v. Grove, supra, and a writ of error refused by our Supreme Court, in which it is definitely and emphatically pronounced in italics that “The urban homestead provided by the Constitution of Texas contemplates a lot or lots used for the purposes specified in such Constitution located, m one urban community, whether governed by one or more municipal bodies, and not a lot or lots situated in widely separated urban communities.”

We therefore conclude that the building and lot used as a place of business in Ferris, Tex., is not included in the homestead with the lot used as a place of residence in Waxa-ha'chie, Tex.; therefore the judgment of the trial court is affirmed.

Affirmed.