Miller v. Widow & Heirs of Menke , 56 Tex. 539 ( 1881 )

Moore, Chief Justice.

The only question in this case depends for its solution upon the construction which should be given section 51, article XVI, of the constitution, defining an urban homestead. The part of the section of the constitution in question reads as follows: “The homestead in a city, town or village shall consist 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; provided, that the same shall be used for the purpose of a home, or as a place of exercising the calling or business of the head of a family.”

Appellant claims that the proviso quoted neither restricts or enlarges the homestead exemption of the lot or lots previously referred to, but merely requires, to bring them within the exemption, that they must be used as a home or place of business. And that “ the exemption is not of a home and place of business, but of a homestead to consist of lot or lots, which may be used for either purpose, and must be used for one or the other.” This construction, it seems to us, would involve us in inextricable difficulty, or lead to results which would evidently contravene the object sought to be secured by the constitution, as is manifest when considered in connection with the previous legislation and the decisions of this court.

Whether the policy of our legislation regarding the homestead exemption has been wise or unwise is not for us to say. It is, however, unquestionable, that from its first .introduction there has been a uniform and steady tendency in the popular mind in favor of its liberalization and enlargement.. And if the courts have not at all times responded to the popular sentiment upon the subject, they have been constrained to give way to it by more explicit legislation, or constitutional' enactments. For example, no sooner was it manifest that the courts were inclined to construe the exemption in the constitution of 1845 as referable both to the lot arid its improvements, than it was declared the improvements should not be considered in estimating the value of the exempted lots. And as we think, when it became apparent that this court did not regard the place of business of the head of the family, if entirely distinct and separate from their home, as within the exemption by reason of its use, then there was an enlargement of the homestead exemption as we find it in the present constitution. Iken & Co. v. Olenick, 42 Tex., 195.

In seeking to ascertain the extent or limit of the urban homestead which is exempted from forced sale, it is well to note that while the first clause of the section of the constitution under consideration declares that the homestead in a city, town or village shall consist of a lot or lots, not exceeding in value, etc., the particular lot or lots which shall constitute the homestead are only indicated or designated in the proviso. By it the homestead lot or lots are designated by the use made of them. That is, if the lots not exceeding in value $5,000 are used as a home or place of business, such lots are recognized as the constitutional homestead,- and are exempted from forced sales. The lots exempt include all used in the one way or the other, unless they together exceed the limit of value. The entire sentence as framed, in our opinion, clearly and properly expresses the intention. If the clause in the proviso had been connected by the conjunction and, as appellant seems to insist it should have been, to entitle it to the construction, it would, as we have said, have had an entirely different effect from what we think was intended, or lead to absurd results. In that case there would have been no exemption of an urban homestead, unless there were lots used both for a home and place of business. If there were both, there is nothing in the constitution to enable us to say whether it is the home or place of business intended to be exempted.

[Opinion delivered at January term, 1881.] Street & Kleberg, for appellant.

Although the opinion of the court would indicate that the construction to be given the clause of the constitution under consideration was circumscribed within the narrow limits of the grammatical relation of the terms used, and that those terms clearly and properly expressed the intention attributed' by the court, yet we venture to say that this decision has been received by the profession with surprise and by the commercial public with consternation.

“ If any lots throughout the city, which may have been used for any business purpose by the husband, thereby become part and parcel of the homestead, which cannot be reached by creditors, or alienated by the husband without being joined by the wife, it is needless to say that the security of those so dealing with the husband rests, to a very great extent, on a moral rather than on any legal foundation.” Iken v. Olenick, 42 Tex., 195.

The judgment is affirmed.

Affirmed.