Arto v. Maydole

Bower, Associate Justice. Prior to the constitution of 1816, the homestead, by deed of trust duly executed, could be made security for an indebtedness other than the purchase money. Jordan v. Peak, 38 Tex., 429. By section 50, art. XI of that constitution, however, it is declared that . . . “no mortgage, trust deed or other hen on the homestead shall ever be valid, except for the purchase money therefor, or improvements made thereon, as hereinbefore provided, whether such mortgage or trust deed, or other hen, shall have been created by the husband alone, or together with his wife; and ah pretended sales of the homestead involving any condition of defeasance shah be void.” The trust deed under consideration was made subsequently to the adoption of this constitution. [247] The legal effect of the verdict was to find that at the date of the trust deed, block 41 was not part of the homestead of Susan Arto. This verdict should control the disposition of the case, unless there was error in the charge of the court by which it might have been improperly influenced. The charge given, virtually instructed the jury as a question of law, that block 11 was not part of the homestead, unless it was a' necessary adjunct thereto for its full enjoyment, although it might have been a convenience for this purpose. A homestead in a city need not necessarily be confined to one lot, but may consist of one or more, provided that the same shall be used for the purpose of a home, or as a place to exercise the calling or business of the head of a family. Const. 1876, art. XI, sec. 51. With this and the further restriction, that the lot or lots shall not, without reference to the improvements, exceed in value $5,000, at the time of the designation as a homestead, it would be immaterial that the homestead may have consisted of both block 35 and adjoining block 44. The question is not whether any portion of this adjoin - ing block may have been a necessity or a mere convenience to the enjoyment of the homestead, but whether, in fact, it was a part of the homestead. If it was, the fact that it may have been used as an approach to the mansion, or for purposes of ornamentation or pleasure grounds only, would not defeat it of the homestead protection. The law in such cases would not draw the line between necessity and convenience; at what point the homestead commences, and where it ends; but the whole question is one of fact, whether the part sought to be sold was embraced within a designated homestead protected by the constitution. The charge given, and which was sought to be cor [248] rected by the charge asked and refused, but which itself was not unobjectionable, was calculated to mislead the jury by withdrawing this question of. fact from their consideration, and was therefore error, for which the judgment must be reversed and the cause remanded. Reversed and remanded. [Opinion delivered January 25, 1881.]