Hargadene, McKittrick & Co. v. Whitfield , 71 Tex. 482 ( 1888 )

Walker, Associate Justice.

The questions raised in this case are not novel. The homestead right when fixed is an estate in the land—it is more than a mere privilege of occupancy. The land on which the estate has been fixed is exempt from execution, nor can it be a subject ©f mortgage by its owner. The creditor has no rights in it nor to it as a security; nor is he defrauded by the debtor holding it or by any disposition he may make of it.

The inquiry therefore in this case is as to the status of the property in controversy at the date of the seizure by the sheriff. Was it the place of business of appellee at the date of the levy of the attachment? (Ingle v. Lea, 70 Texas, 509.)

There is no dispute as to the fact that prior to January 18, 1888, the main store house thirty by one hundred feet first built by Whitfield was occupied as his place of business. The part of the two lots eleven and twelve not covered by the •store house, by a liberal construction of the term “place for the exercise of the calling or business,” might, by reason of actual occupancy of parts of both lots, be covered by the exemption in absence of any other fact giving such a part any other character of property. The extension by Whitfield of his store room and its occupancy as a ware house in his business was legitimate. It was not a ware house detached from •and no part of the lot used as his place of business, as in McDonald v. Campbell, 57 Texas, 617. If the extension was made for his business its exemption of course would not be affected.

In the renting out of the twenty by sixty feet of the north end of the new building is evidence of a designation to another use inconsistent with his own. Such acts have been held as an abandonment to that extent even of a part of the residence homestead. (Wynne v. Hudson, 66 Texas, 1.)

The mere failure in business of Whitfield as a merchant did not work an abandonment of such part of said lots as were his place of business. Nor did his assignment have that effect. The work of disposing of the merchandise by the trustee was a winding up of that part of his business and did not prevent his continuing in some other business or in resuming as a merchant should he ever be able. He had a reasonable time within which to begin business of some kind. He could have changed his calling voluntarily. The compulsory change of itself would not destroy his right to labor upon the place of his disaster in some other or new occupation, (Gassaway v. White, 70 Texas, 509.)

The law does not as a condition for its protection of these rights impose upon the failing debtor any definite degree of success in his new enterprise. The intent of the exemption seem to be to aid those needing it rather than those in prosperity. It is useful only in financial distress.

There is ample testimony to Whitfield’s efforts to do something for himself. He looked after his notes and accounts kept in his store room to which had access for the purpose. He sold garden seeds on commission as other merchants did. He sold wagons on commission, using the ware house in storing parts of the wagons. He bought and sold cotton, keeping his cotton samples and books in the house. He testified that he had hopes of resuming as a merchant. It is evident that Whitfield needed and used a place of business. That his business was comparatively small is not to be considered when he invokes the shelter of the law. over what little he had. It can not be held that the law withdraws its protection from "smalt beginnings.”

The use determines the place of business. The dedication to other purposes is inferred by the erection of the building and its continued letting to tenants—a use inconsistent with his own. (66 Texas, 1, Wynne v. Hudson; 57 Texas, 674, Shryock v. Latimer; 59 Texas, 39, Medlinka v. Downing; Iken v. Olenick, 42 Texas, 201.) Such was the use of the twenty by sixty feet in the north end of the new building.

The court in its findings fixes the value of the homestead property, resident and business, to be less than five thousand dollars. There is no testimony to value in the statement of facts. In the absence of the testimony the court can not presume the value at any particular sum. Certainly it will not be presumed that it was over five thousand dollars in value. But this was not in issue in the pleadings. The lots eleven and twelve were claimed as exempt as the place of business to which he was entitled as head of a family.

The appellants, after a general denial, attacked the .claim, alleging abandonment of it by Whitfield, etc. That the homestead exceeded in value the constitutional limit did not subject the whole to sale. In rural homestead the statute provides for setting apart the homestead where the acres in the tract or tracts claimed are in excess.

It is not doubted but the excess in value in the urban homestead can be subjected to the payment of debts. But to do so the pleadings should be so formed as to put the fact in issue. The claimant should have his interest preserved. The court is as much charged with the duty of protecting the amount of interest had by the debtor and allowed by the Constitution as in cutting off the excess for the creditor.

The purpose of the statute is to protect the homestead. The quantity and value are limitations upon it when established. They form no part of a definition of a homestead. If the value exceeds the limitation it does not destroy the homestead or make it any the less one. Our courts have indicated in other-cases as a means of subjecting the excess, the sale of the property and the appropriation of the excess to the payment of the debts. (Paschal v. Cushman, 26 Texas, 74.) In other States, under statutes allowing it, a partition has been decreed where possible, and setting apart of the homestead the value allowed to the occupant, the residue to be subject to sale. (Gregg v. Bostwick, 33 Cal., 222; Thompson on Homesteads, secs, 110, 111.) .

The general denial interposed by plaintiffs to the homestead claim required proof of the main facts, citizenship, family and residence. The plea in avoidance did not allege the matter of value or ask relief as to any excess. It is held under the findings of facts by the court, which are sustained by the testimony in the record, that the attachment should be abated as to all of lot twelve, and as to all of lot eleven, save as to twenty by sixty feet (being twenty feet in width front and sixty feet back to the partition from the north and east sides of the lot.)

The judgment below should have been so rendered. It is reversed and judgment will be here rendered in accordance with this opinion.

Reversed and rendered.

Opinion delivered October 19, 1888.