Henderson v. Ford

Moore, Associate Justice. All of the errors assigned by appellants for the reversal of the judgment, unless it is the first, are too general and indefinite to require of us any special notice; and while the first supposed error pointed out by the assignment may not be subject to this objection, it is, intrinsically, entitled to no serious consideration. It has not been noticed by counsel for appellants, in their brief, and [630] we may reasonably conclude that on reflection it was deemed by them to be untenable, and therefore abandoned. If, however, we can regard the other errors complained of in the assignment as sufficiently definite, and as properly presenting for our consideration the objections to the judgment discussed by appellant’s counsel, and upon which its reversal is insisted, we are constrained to say, in view of the numerous decisions of this court upon the subject, that we can see nothing in the record of which appellants have any cause to complain. It cannot certainly be denied that the land in controversy was the home and residence of appellee, Carrie E. Ford’s, former husband, D. B. Bohanon, from .the time he improved and moved upon it, in 1860, until he joined the Confederate army, in the fall of 1861. Bohanon was, during this time, a single man, and the dwelling which he occupied was no doubt of a very unpretentious character, and may have been ultimately intended for the occupation of his servants, instead of himself; still, as it is not controverted that he and his servants lived upon the place, it must be admitted, if a man who has no family except his servants, may have a homestead, that he was entitled to a homestead on this land prior to his leaving it to join the Confederate army. There certainly can be no pretense that the possession and occupancy of the place was surrendered by Bohanon when he went to the army. He left his negroes upon it, and they continued upon and cultivated it for him, under the direction and control of his agent and brother-in-law, Dr. Prince, until its sale, in 1864, to appellants. Unquestionably, it cannot be held that the mere fact of one’s absence from his home, in the discharge of public duty as a soldier, will operate as an abandonment or forfeiture of his homestead rights. But it is insisted, because Bohanon, when he left for the army, authorized Dr. Prince to sell the place, with the view of purchasing another tract of land adjoining Dr. Prince’s land, it must be presumed that he did not intend to return to.or continue to live upon this [631] land,' and that he thereby abandoned it as Ms homestead; and especially so, it is said, as on his final return from the army, some three or four months before the sale, he did not reside upon it, but remained at Prince’s. In response to this, it will suffice to say, that it may be conceded that Bohanon wished to sell this land for the purpose of purchasing" another tract which he regarded as more desirable; and that he hoped and expected that his agent would be able to effect a sale of it for him before his return to the State. But certainly this does not import an intention to abandon his home unless it should be sold; and evidently, it cannot be held, without coming in conflict with the entire current of the former decisions of tMs court, that the mere fact of a man’s contemplating the sale of Ms homestead prior to or at the time of his marriage, or that authority previously conferred upon an agent to sell it, is unrevoked if it is still Ms homestead at the time of his marriage, will authorize Mm to sell it, either in person or by his agent, without his wife’s joining in the conveyance. And as Bohanon was married previous to his final return from the army, if the homestead rights of his wife had attached, he evidently could not acquire the right to alienate the homestead, without his wife’s consent, by temporarily abandoning it and residing elsewhere for the short time he was here before the sale. But aside from this, the testimony does not warrant the inference that his failure to return to and reside upon the place was because of its having been abandoned as his home and permanent place of abode, unless he should sell it, but that he staid at Dr. Prince’s on account of Ms health and for medical treatment. There being no just ground to infer that Bohanon had abandoned Ms home upon the land previous to his marriage, and there being no evidence to authorize the inference that he contemplated, either before or after his marriage, a removal from Texas—wliile, on the contrary, it clearly appears that the contract of marriage, both with Mm and his wife, [632] was made in the contemplation of a permanent residence here,—their marital rights in the courts of this State, at least, must unquestionably be construed and determined by our laws. (Story’s Confl. of Laws, secs. 194-200.) It follows, as a necessary consequence, as Mrs. Bohanon did not join in the deed to appellants, it was inoperative and void against her, to so much of the land as was included in the homestead, unless she is in some way estopped or precluded from controverting it. By the marriage, as has been said, Mrs. Bohanon acquired a domicile in Texas. Her temporary absence, with the consent of her husband, evidently did not deprive her of the rights to which she was thereby entitled. And especially, as it is shown that she came here as soon after her husband as it was reasonably practicable for her to have made the trip. Though she was not in the State at the time appellants purchased the land, when they accepted the deed and paid the purchase-money, they knew • that Bohanon was a married man. The fact that Henderson says he did not think, and does not now believe, (i. e., at the date of the trial,) from the appearance of the place, that it was a homestead, cannot be regarded of any consequence, without repudiating the doctrine recognized by this court in all its former decisions upon this subj ect. The facts which came to 1ns knowledge were fully sufficient to have put him upon inquiry, and had he endeavored to do so, it cannot be doubted that he might easily have ascertained that Bohanon resided on the land when he joined the army, and had not abandoned it or acquired any other home previous to his marriage. As the land was sold by her husband before Mrs. Bohanon reached Texas, the fact that she did not go upon or reside on it is of no moment whatever. A wife is not required to desert or separate herself from her sick and dying husband, on penalty of forfeiting the home secured to her by the Constitution and laws. The only remaining objection to appellee’s right to a judgment is her removal from the State after Bohanon’s [633] death, and subsequent marriage to her present husband. If the views which I heretofore entertained with reference to the homestead right as contemplated and intended to be secured by the Constitution and laws of this State to the heads of families, and surviving constituents thereof, had been recognized as correct, I could well see that these objections might- he entitled to much weight. But this court has taken a different view of the matter, at least in cases of insolvent estates. (Reeves v. Petty, 44 Tex., 249.) And a majority of the court are of opinion, in which I acquiesce, in consideration of the general tendency if not direct determination in previous cases, that as appellee’s, right as surviving wife had attached, and the sale by her husband to appellants may have operated to prevent her taking possession of the homestead after his death; and as it is not shown that she intended, by leaving the State, as she did, to abandon her claim to it; or that, under the circumstances, her going to reside with her relatives was inconsistent with her subsequent demand; and since it is not made to appear that she has subsequently acquired any other homestead,—her removal cannot he held to bar or preclude her recovery. And if the widow gets anything more than a usufruct by the homestead right, it is not perceived that the mere fact of her subsequent marriage (without thereby getting another home) pending her suit for its recovery, can deprive her of such right. The judgment is affirmed. Affirmed.