Taylor v. Boulware

Lipscomb, J. From the statement of facts, there is no question that the whole of the land sued for in this case was, in 1848, the homestead of Boulware, the appellee in this Court and plaintiff in the Court below ; and it is equally clear that he never relinquished or abandoned it, but that it was his homestead at the time of the sale by the Sheriff, under which appellee became the purchaser and obtained possession. The death of the wife whilst it was his homestead, and his having no children, did not destroy its distinctive character of a homestead, he continuing to reside there with his slaves, hirelings and niece, and her husband, Mr. McAlister. If he had been without servants or any one with him after the death of lib-wife, it would still have been his homestead so long as it continued to be his residence, and protected from a forced sale. (Wood v. Wheeler, 7 Tex. R. 13.) His temporary absence for six or eight months, leaving his slaves and McAlister as agent, and no new residence acquired, could not amount to a forfeiture of his homestead rights. At the time the homestead was acquired, the protection from a forced sale would have included ail the land sued for in this suit, because it did not exceed two hundred acres, and was in the country, not included in city or town ; and it the case stopped here, it would be clearly with the appellee. But by the 2nd Section of the Act incorporating the town of Marshall, passed in February, 1850, the limits of the town were extend [78] ed so as to include within its limits about three and one half acres of the land, and on this land, so included, was the dwelling of the appellee, leaving out some out buildings. This extension of the town was before the Sheriff’s sale, at which the appellant became the purchaser. It does not appear that there had been anything done by the corporate authorities in laying out streets or squares on the land of the appellee. The charter directed that the town should be one mile square, taking the courthouse as the centre of the square. These limits had never been surveyed or marked out, and it had to be matter of proof on the trial that the homestead was within the limits. The County Surveyor proved that after the commencement of the Term, he had, for his own satisfaction, run a line one half mile from the courthouse, and found that the three and a half acres before mentioned were included within the town limits. Under such circumstances can the land, so included, on which the residence of the appellee is situated, be regarded as a lot or lots in a town, and restrict his homestead privilege to that quantity of land? The constitutional protection of the homestead from forced sale, is found in the 22nd Section of the General Provisions, (Hart. Dig., p. 73,) and is as follows : ‘ The homestead of a “ family, not to exceed two hundred acres of land, not included “ in a town or city, or any town or city lot or lots in value not “ to exceed two thousand dollars, shall not be subject to forced “sale for any debts hereafter contracted,” <&c. We are not disposed to question the power of the Legislature to extend the limits of the corporation of Marshall; nor to question that after the plan or plat of the town had been extended, corres ponding with the boundaries so authorised to be extended, a homestead falling within such extension, though acquired before it was done, would work a change in the character of the homestead, from a country to a town homestead. But we do question the position, that the mere act of extending the' corporate limits, by the Legislature, without any act of the corpo [79] ration to give an extension of the plan of the town to those limits, can change the character of the homestead. The protection of the homestead from forced sale was manifestly a favorite object with the Convention, and the constitutional provision, intended to secure that object, has been regarded as entitled to liberal construction. The term lot or lots, used in the Constitution, must be taken and construed in the popular sense of those terms ; and, when so used, never would be considered as embracing land within the jurisdictional limits of the corporation, not connected with the plan of the city. It might be important to the administration of the police laws of the corporation, that such lands and those who owned or occupied them, should be within its jurisdiction ; but, until streets had been extended through the land connecting it with the plan of the town, the land could not be called a lot of the town. It is admitted that the term lot is sufficiently comprehensive to embrace any piece or parcel of land, and the land in controversy might be so designated, but not because it was within the corporate limits of a town. There is a large plantation commencing within three hundred yards of the courthouse in which we are now holding Court. That plantation may or may not be within the jurisdictional limits of the town of Tyler ; but if it is, no one would ever think of designating it as a town lot in the town of Tyler. , There is another view which fortifies the conclusions to which we have arrived ; that is, that it is impossible to know how the homestead will be affected by extending streets through it, and connecting it with the plan of the town. It may be so materially affected as to render it of little or no value as a homestead ; and if it should be held that it was cut off from and separated from the lands without the jurisdictional limits of the corporation, the owner would have an equity that should be secured to him. This, perhaps, could only be done by allowing him to make his homestead on the land without the corporate jurisdiction of the town. This we regard as a strong [80] reason why his homestead should not be disturbed, under the-circumstances presented in this case. It is not regarded as material to notice the points presented by the appellant’s counsel, as to the rulings of the Court more particularly, because we believe that they are all embraced in the views we have expressed. We find nothing in any of them that could change the result. The judgment is therefore affirmed. Judgment affirmed. Wheeler, J.. did not sit in this case.