(Dl.sWlct Oourt, W. D. Te:J:CU' Harch 19, 1899.)
EOMESTEAD-WllAT CoNSTITU'lES-BUSIN1!ISS PREMISES.
Urider Const. Tex. art. 16, S 51, an urban homestead may include not only a house and lot used as a family residenoe, but also other lots contiguous thereto, which are used by the head of tbe family for business purposes, provided that both togetber do not exceed $5,000 in value, exolusive of improvements. MiUer v. 56 T.ex. 550, followed. Under sections 50, 51, snch homestead is exempt from jUdicial sale to pay debts incurred in the purchase of merchandise.
Under the Texas constitution, a designation of business premises as a homestead is. sUlllciently shown by a bill which alleges that plainti1l "purcbased said property for the purpose of using the same as a place to carryon his said business, and with .the fixed intention of designating and using the same as bIs busineSB. homestead, and that on the day he acquired title he took possession, and has since continuously used tbe premises as his place of business. Miller v. Menke, 56 Tex. 550, followed.
SAME-SALB OIr BOMESTEAD':"'!NroNCTION.
Equity will enjoin the forced sale ofa homestead to pay debts, since luoh sale, though lUvalid, would create a cloud upon the title.
In Equity. Suit by Joseph W. Webb and wife against Hayner & Co. and Paul Fricke to enjoin the sale of a homestead. Heard on demurrer to the bill. Overruled. Ge,orge F.Pendexter, for complainants. Jame8 B. Goff, for defendants. Before MAXEY, Dietrict Judge.
MAxEY, District Judge. This bill of injunction ill brought to restrain Hayner & Co. and Paul Fricke, marShal of this district, from selling a house and .lot claimed by complainanta as a business homestead. Defendanta demur on several grounds, but at the argument only the following were relied upon: (1) "That said bill discloses no equity,and seta forth··no facts whiCh, if true, would entitle the plaintiffs to the re,lief sought."· (2) "That it appears from the averments in said bill contained that, if the same are true, plaintiffs have a full and adequate remedy at law." (3) "That said bill sets forth no facts constituting a designation of the land therein described as a homestead." It is alleged in the bill that the husband, Joseph W. Webb, has during the past 10 years been a married man, and the head of a family, a citizen of Travis county, and continuously during the period aforesaid has been engaged in the mercantile business as a member of the firm of John A. Webb & Bro. The bill then proceeds as follows: "Your orator would further show that heretofOre, to-wit, on November 9, 1881, he acquired by purchase a legal and equitable title to certain real estate in the city of Austin, Travis county, Texas. fully described as follows, towit: Ten feet 01f of the east side of lot No. three, and twenty-nine and a .half feet off of the west side of lot No. four. Said lots adjoin each other, and are situated in block No. 68, in said city of Austin; together with the 'improvements ·thereon situated, consisting of a two-story brick store-house. Third. Your orator would further show that he purchased said property for
the purpose of using the same as a place to carryon his said business, and Wlingtbe same as his business with the fixed intentimkof, homestead; and that on day'b'e 'acquired' title to said property as aforesaid took ,s1'm.El pnce to .use said your premIses as a place to carryJ bi1 111S «aid bUSUiess, and tbli.t' be has smce conused, occupied, cl"illled,anq,l:llJ.i,ored. }lis place of atthlll:time, And he 1lurther1lJlows.that he has'never sold or;conveyed said property or any Interest legalandequltable',owner thereof 'by fe&'simple title, atldhasat a11'tlm'es «Ince 'he 'acq uired' 'claimed, used, occupied, and enjoyed said property 8S his business in'whlch ,to 'lauy.,on, hjs,said.,busine84,.an./l Q9W and enjoys the same. And your orator further shows that at ,the; time· he so property as. hill bus,iness bomestead,and"commenced tOllse t,' Whl,eh, :e"'"e;cl,se', (larrY9,n, his' said' business,' the same,exchllilverQftbe· imprii;Vementi'l.thereon. was of Iessvll.1ue than five 'tliOll!land doHars,.and that said premises ,now exceed in value the sum oUwo AM, ;fqrtlfer, .yolit shows that now, and d,Id no, t h,'ave, aoy residenC,e,,' bO.me,stea,d, ,at the, ,date Of, the levy", ,. e,xecution tbe. V/JohlO.<>f wpillh. a<;ldf'dtq, would equal five thousand dollars. ,Yoult,orator,wouldfurtlJer sbowthat he, being a married man, and the head of a family, as aforl:'said, is, and was at the date he /lcquired said prOPefty,und!!\,'the constitution and laws. 'of the state, of entitled to bo\d pl,'operty as his howestead,l;lxempt from all claim thereon by his creditors, of the nature hereinafter mentioned ; and that said property, so being his as aforesaid,wasat,al\times since he acquired the same, and is now, llot'/tubjectto be levied on or 'sold to satisfy any judgment or execution against him of the nature hereinafter, mentioned, of which fact the above-named defendantjJ.were each lind alL advised at and before the dates hereinafter mentioned." The allegations 'of the bill' also ahowthat on J\1ly 20, 1882, the'defendants Hayner & Co., merchant80f St. Louis, Mo., recovered judg;. ment againstthe firm of·John A. Webb & Bro. in the circuit court of the United States forthisdistrict.in the sum of $14,573.89, the same being for the, walu,e 'of and merchandise theretofore ,sold and delivered by,:Hayner;&Co. to John. A. Webb & Bro.; that Fricke, the marshal, acting under the direction andauthol'ityof his co-defendsnts" did, on the 13th'day of November, 1891, levy a writ of eXeCUtion on complainants' said business' homestead, and on the ,same day dulj'ad¥flttised saidprQperty for ieale, It is fUrther alleged by COniplainant. that the levy of, said, execution on his hQmestead, and the advertisement thereof under the same, have cast a cloud upon his title to ,the propertYi "and he furtaershows and represen,<ts that said defendants now threaten and..intend:to ,sell his:said pursuant to said levy and advertisement, and will proceed 60 'to do by your ,honors from so doing. And your orator furthershoW8 and represents to your honors that the threatened sale of his said homestead by defendal)ts will him greatapdirreparable injury, tot' he has no adremedy at lawithat said sale will casta upon your 'Qrator's title to his ther.eby greatly the value thereof, and w111 9f n,ecesslty reql,llre your orator t9 lnsbtute and prosecute, at great to himseH,a i suit or suits against the pur-
\: 'WEB)J 11. RAYNER.
cbasersof! his ,saidpl'operty at such· sale· .for, the purpose of removing the CIOUc4/thereby castoI1hil!! title tohis said homestead." The quel3tion arisiqg Ithe ta(l'ts, demurrer to be true,'is'",hether the house andlot claimed by cOmplainants as a business hqmeste!ld are exempt fr9Jp., .forced saJ.e tinder the, eqnstitutionand laws of the It is the constitution that homestead of a family mall be, and is hereby, protected from foteed sale for the paymentof all debts exceptfor the mOI1eythereof, or a part'af such purchase money, the taxesduethereon, or for work and material used in constructing imprOVemElnts' thgreon; and in this last case only when the work and material Bre contrMted for in writing, with the consent of the wife given in the same manner as is required in making a sale and C01'}veyance oftha homestead,;:nor shall the owner, if a married man, sell the homestead without the consent of the wife given in such manner as may be by law No mortgage, trust-deed, or other lien on the homestead shall ever be valid except for the purchase money therefor, or improvements made thereon, as hereinbefore provided, whether !luch mortgage or trust-deed, or otner lien shall have been created by the hU.abllnd alone or together with his wife; and all pretended salea of the homestead, involving any condition of defeasance, shall be void." Canst. art. 16, § 50. "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, they shall be used for the purposes of a home,. or as a place to exercise the calling or business of the head of a faroily." Id.§ 51. Construing the foregoing constitutional provisions, the supreme court of this state holds that. not only a ho.use and lots used as a home for the family are exempt from forced sale, but that the exemption also includes other lots, not contiguous to the home place, used by the head of a family for business purposes, provided both do not exceed in valM the sum of $5,000, without reference to improvements. The question was presented to the supreme court in 1882, and, speaking for the court, Mr. Chief Justice MOORE says: "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 tlrst 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 widell 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 excl'eding in value $5,000. aJ"eused 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." Miller v. Menke, 56 Tex. 550,551. A motion for rehearing was filed in that case. and in deciding the motion Mr. Juepce STAYTON,at pages 562, 563, observes: "Weare of the opinion that the framers of the present constitution Intended, by the language used in .that instrument, to so far extend the meaning of the words, ·the homestead of a family.' 88 to make them embrace not
only the)home or residence- of the but, tn addltlOll ,the place famIly may exercise hi!! calling or business. even though where the bead in down or. city. not contiguous to ,that. upon which the t,he hpW/e'i:lr, residence of the family sta,ndll.... ... intention by the co'nstit'ntion.1J;l tbe language used, must have beentQ extend the protection which'itwuintended to gfveto something under the:dil!iignation of · the bomestead';offa:family,' howev8t incongruous that mat be to the ordiuarymean:ibg, of the words' homestead' or · home of the tamily,' which of former constitutions, .under bad not b,eeJ;l, con,llidered, proteoted,by the court"anA that that something was 'aplaee to exercise or of the bead of the, family. I It
That:the constitution places the business homestead of a debtbr be.yond the reach of creditors who attempt: to sell it tb satisfy an indebted.. ness incurred in the purchase of goods, wares, and merchandise; is clearly settled bya11 the cases cited. The objection urged by defend.. ants, that the" bill sets forth no facts constituting a designation of the land therein described as 'a homestead," is answered by the chief jus.. tice in MiUerV'.Menlce,where he says: ," By it [meaning the constitution] the homestead ,lot or lots are designated by then'se made of them." The allegations of'the bill plainly indicate the intentio'n of complainants, and the use madeofthe property by them, and that use, coupled with the intention; was a designation of the lots'as a homestead, within the meaning of theconstitutioD, See Gardner v. Dougla88, 64 Tex. 76. . The remaining,groulld of objection is that a court of equity wiil not restrain the sale of a homestead, but remit the party complaining to his remedyrat law·.... This objectlon presupposes that a sale'of the homestead, owing to its invalidity, w'(mld convey no title to the purchaser, and, therefore, equity'should not interpose its restraining hand, Upon this point the renial;keofMr. ChiefJ"usticeSTAYTON in' Cattle 00. v. State, 68 Tex. 537;538, 4 S. W. Rep. 865, although having reference to another questioD, are strikingly apI>0site: .. A defendant who asserts' clahn, even under an instrument void on its face, cannot be heard to say that it has not such semblance of validity as to create a cloud upon Ule,title to ptopel'ty which it .professes to convey tlJat will prejudice the right oBhe real owner jf it be not removed. ,He cannot be heard to say that others .will not attach to it the same degree of faith and credit as a title-bearing instrument which he in good faith gives to it. and that, to the extent of the doubt or cloud thus cast upon the real title, its holder is injured. OJ' is likely to be injured." '. .' That 01. equity will enjoin the sale of a homestead under execution appears well established by the authorities. The rule is thus stated by Mr. .' sale of the homestead interest as operating as a cloud UpOD the title; and the legal rernedies being generally inadequate for the prevention of such a grievance, rellef in eqUity has been freely extended for the purpose of preventing an enforced sale under execution of premises in the actual occupancy of the debtor as a<homestead, and which are protected from levy and sale under the homestead 'dxemptionlaws 'af the state."l High, lnj. §438.
Milce,16 Tex. 82, 11l S. W. Rep. 58.
Shryock v.lAtimer,57 Tex. 674; Inge v. Cain, 65 Tex. 75; WilliB v.
Mr. Freeman says: .. The sale"of bomestllad property under execution has fl'equently been enjoined. Tbe injunction. in sucb cases, has uniformly been justified upon the ground that the sale, if permitted to be made, would create a cloud on the defendant's title." Freem. Ex'ns, § 439. In Thompson on Homesteads and Exemptions, (section 681,) it is said };lythe author that-.','One ,of the grounds On which courts of equity frequently interfere for the protection of the debtor's homestead is cloud upon title. Thus, where a bouse constituting a partQ! a debtor's homestead has been sold under an execution against bim, although ,the sale confers no title. yet it constitutes such a cloud upon the debtor's title that eqUity will interfere to enjoin possession. So, in to prevent aQloud being cast upon his title, a court of eqUity will enjoin a threatened sale of a debtor's homestead." See, also, 10 Amer. & Eng. Law, p. 809, tit. " Injunctions." Reference ll.1so to the cases will conclusively show that injunction, is remedy to prevent the threatened sale of a homestead under circumstances disclosed by the bill iothis suit. Gardne:r v. Dougla88, 8Upra; Van Ratcliff v. CaU! 72 Tex. 491, 10 S. W. Rep. 578i F'ink v. O'lfeil, 106 U. S. 272, 1 Ct. Rep. 325. ' Defendants rely, in support of their position, upon Whitman v. Willis, 51 Tex. 421i Carlin v. Hudson, 12 Tex. 202; and Cameron v. White, 3 Tex. 152. 'It isappll.rertt from an examination of those authorities that they are without application to the facts as set forth in the bill of complaint. There no homestead question was involved. Here the only purpose ofthe bill is to restrain the sale of homestead property, which is securely protected from forced sale by the constitution and laws of the state, The demurrer to the bill should be overruled; and it is so ordered. '
fla!. fl. HAYNER
CD£8trict Court" W. D, Texas. March 12, 1899.)
In Equity·. Suit by John A. Webb and wife against Hayner &, Co. and Paul Fricke to enjoin the sale of a homestead. Heard on demurrer to bill. Overruled. (Jeo1'ge e. Pendexter. for complainants. JamesB.(Jojf. for defenqants.
14AXEY, District Judge.. The bill in this suit is in all respects similar to thlit in case No. 182, (49 Fed. Rep. 601,) except that in the present bill it appears that the execution was levied by the marshal upon different. but adjoining. property; and the complainants in this suit have no homestead other than that described in the bill. which is used solely for business purposes. The llemurrer of defendants raises the same grounds of objection as those already considered, and a must follow. It is therefore ordered that th.e,deJDur.rer be overrqled.