McDannell v. Ragsdale , 71 Tex. 23 ( 1888 )

Walker, Associate Justice.

The question involved here is whether the wife and minor children of a man who has left the State and desires that they follow him still retain the protection of the homestead exemption while they remain upon the homestead left by the husband and father.

It has been held that one family is not entitled to exemption for two homesteads at the same time; and that where two places of residence are owned by the head of the family within the State, that the husband as head of the family can designate which of the two shall be the home of the family, thus selecting the homestead and designating the place of exemption. (39 Texas, 362, Holliman v. Smith; 51 Texas, 158.)

It is also settled that the creditors of the husband have no interest in the homestead as property, which may be used in payment of his debts; and, therefore, that in.the sale or disposition of it there can be no fraud against the creditor. (25 Texas, 123.)

It may also be assumed that if the wife determined to do so she can not be prevented from remaining in the State and continuing the occupancy of the home after the husband has left, whatever may be the purposes or success of the husband after leaving the State.

It would follow then that until the wife shall follow the husband, or part with the home to which the laws extend their protection, the creditor of the husband could not interfere with her rights and that of her children in the homestead. Upon the husband’s leaving the State she became the head of the family. (41 Texas, 648; Kelley v. Whitmore, and cases cited.)

In this case the ability of the wife to join her husband with their children seems to have depended upon a sale of the property. Her wish to sell and desire for future ¡abandonment should not render it subject to seizure and sale, while so occupied in fact.

The court submitted the issues raised by the testimony in charge. “If you find from the evidence that Joseph Weber (the husband), in good faith, without any intention to defraud his wife in her homestead rights, left his homestead on the land in controversy prior to June 4, 1883 (the day of the levy under which plaintiff claims), with intent never to return to it and occupy it as a homestead (unless he left with the intention in subdivision No. 4 of this charge), you will return a verdict for plaintiff. In this connection you are instructed that no matter how long or how far Weber may have wandered from his homestead (if he had one), yet, if he had an intention to return thereto it would not constitute an abandonment of the homestead. Moreover, before the homestead character will be lost it must be undeniably clear and beyond all reasonable ground of dispute that there has been a total abandonment without an Intention to return and claim the exemption. But it is not necessary that another should be acquired provided there is the intention to abandon and an actual abandonment of it.”

4. “ If you find from the evidence that Joseph Weber d id leave his homestead and emigrate to the Territory of Arizona, with the intention never to return and claim itj yet, if you find that he intended his family to remain on said homestead until it could be sold and the family did so remain until the fourth day of June, 1883, then there was not such an abandonment of the homestead as would render it liable to execution, and if you so find you will return a verdict for defendant.” »

These propositions are as favorable to the plaintiff’s case made in the testimony as the law, as held by our courts will permit.

Holding as we do that the homestead once acquired is not abandoned while the wife and children are, in fact, residing thereon, it was not error in the court to refuse the instructions asked as to the effect of the husband’s acts and purposes for the future after he had left the State, upon the homestead character of the premises occupied by his family in Texas. The acts and declarations of both the husband and wife on the subject of removal to Arizona were properly in evidence. There would be no fraud in the purpose, if shown, that the wife and children should remain until they could effect a sale of the homestead. She had the legal right to do so. There is some conflict in the testimony. If the witness Westbrook is to be believed, the wife in fact had followed her husband to Arizona before the levy. This would have authorized a verdict for the plaintiff. This testimony is contradicted, and the jury were the judges of the credibility of the witnesses examined.

The case, as it appears from the testimony, is that the bus-band left Texas to seek a location—after wandering for months he stopped at a railroad village in Arizona; bought property with his wages, and wrote to his wife to join him. She had remained with her children and did not have the means to join her husband without making sale of the homestead. At the time of the levy she and her children were living on the premises levied upon. The husband was insolvent, having failed in business as saloon keeper in Texas. In Arizona he had taken up his former trade as barber. On hearing of her husband’s wishes, as to change of residence, the wife put the place into hands of land agents for sale, intending to leave as soon as she could sell.

x The lot was levied upon June 4, 1883, and sold October 4, thereafter. The sale and conveyances, down to plaintiff, were regular. The defendant, Ragsdale, claimed under a deed from Weber and wife, acknowledged by the wife September 4, 1883. She and her family resided on the lot until September 11, 1883. Ragsdale was her son-in-law, and knew all the facts. The premises being, in fact, the residence of the family at the levy; and the parties, Weber and wife, having conveyed to defendant, by the forms of law, there was no injustice done by the verdict and judgment. Finding no error the judgment below is affirmed.

Affirmed.

Opinion delivered May 29, 1888.