First Nat. Bank v. Dismukes , 241 S.W. 199 ( 1922 )

The only question presented on the appeal is that of whether or not a homestead will attach to a business house or "warehouse" that is constructed on leased premises. In point of fact the "warehouse" was used by the husband, as the head of a family, as a place to exercise his business, at the time and since the deed of trust was made and filed. As the homestead right or privilege is of constitutional creation, its nature, character and extent depend upon the law creating and defining it. "The homestead in a city, town or village," as defined by the Constitution of this state —

"shall consist of * * * a 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 purposes of a home, or as a place to exercise the calling or business of the head of a family; provided, also, the temporary renting of the homestead shall not change the character of the same when no other homestead has been acquired." Const. art. 16, § 51; article 3786, Complete Stat. of 1920.

Ownership of the fee in the "lot or lots" is not, by any terms of the law, essential to the existence of the homestead. The only limitation of the law is as to value and the use of the property. While the law is in terms of "lot or lots" of land, yet the object was to secure to the family a place of family residence and a place for the head of the family to actually exercise his calling or business to support the family. A "house" is necessarily embraced in the word "home-stead." Franklin v. Coffee, 18 Tex. 413, 70 Am.Dec. 292; Cullers v. James, 66 Tex. 494,1 S.W. 314. As stated in this latter case:

"If the head of a family owns a house and no interest or estate in the land on which it stands, the house is a chattel. If he occupies it with his family, it is their home. He may be compelled to move it from one lot to another as fast as legal process can oust him, still, though ambulatory, unsatisfactory, and in all its appointments mean; though it advertises the thriftless poverty of its proprietors, and is a caricature of the princely possibility of the exemption laws, it is the home of a family, and is embraced in the spirit and purpose, if not the letter, of the Constitution. The same principles under our present Constitution must be applied to the place of business of the head of the family."

Hence, giving effect to the plain intent of the Homestead Act, any possessory interest in a lot or lots, the fee-simple title not being required to support it, coupled with the requisite occupancy by the husband and his family, is sufficient to support a home-stead claim. Consequently, if any possessory interest in the lot or lots less than the fee-simple title is sufficient to entitle a claimant to the benefits of the provisions of the Homestead Act, it follows logically that the homestead right and privilege attaches to a tenement or building, coupled with the requisite occupancy, erected upon leased or rented premises. Cullers v. James, supra; Low v. Tandy, 70 Tex. 745, 8 S.W. 620; Phillips v. Warner (Tex. Sup.) 16 S.W. 423; Brewing Ass'n v. Smith (Tex. Civ. App.)26 S.W. 94; Ellis v. Bingham (Tex. Civ. App.) 150 S.W. 602.

It does not appear, it is true, in the record the kind of lease, or duration of the same, that appellee has in the land. An exclusive, uninterrupted possession of the premises does appear. That is sufficient as against a judgment creditor. Where a head of a family is in the exclusive possession, as here, of a lot of land actually occupied by him as a business homestead, it does not concern the judgment creditor whether such claimant possesses a lease for a long term of years or of less duration.

The judgment is affirmed.