Alexander Wilson v. John L. Cochran et al., 31 Tex. 677

Lihdsay, J. —A judgment having been recovered against the appellant by John L. Cochran, at the spring term, 1867, of the district court of Brazoria county, an execution issued thereon,- and was levied upon four town lots, and the improvements, in the town of Brazoria. The appellant sued out a writ of injunction against the execution, alleging, in his petition to obtain it, that the lots and improvements were his homestead, and did not exceed in value the sum of $2,000. In his petition the sheriff alone was made a party defendant in the suit.

The plaintiff in the execution, who ought also to have been made a defendant, without citation, appeared and made himself a party defendant, and was, in fact, the real party in interest. He filed his answer, denying that the property levied on was the homestead of the appellant, The demurrers, both to the petition and the answer, became unimportant in the case, as there was an issue of fact finally made, upon the question of the homestead, for the determination of the court.

The allegations of the petition, if unqualified and uncontradicted by counter-statements, were sufficient to authorize the granting of the injunction. Those allegations were, however, traversed by the answer, and made an issue of fact, to be determined by the evidence on the hearing of the motion to dissolve the injunction. • The simple issue is, was it a homestead in fact, within the meaning of the constitution of the state ?

The facts are, substantially, that the appellant acquired the property by devise, in the year 1855; that there was a house upon one of the lots at the time of the acquisition; that the appellant occupied it as a sleeping apartment, or dormitory, from 1855 to 1865; that he erected a new house thereon in 1866, designing it as his dwelling and furnishing it as such, building a kitchen, putting up a cooking-stove, &c., and intending to occupy it as a dwelling; that he leased out the premises since the year 1866; that the whole of the lots and improvements do not exceed in value $2,000; that the lessee was required to make other improvements; that the appellant is a single man, and has never had wife nor children, nor had he,, at any time, domestics, or servants, upon the premises, but that he occupied the premises alone, and ate elsewhere; that, at the institution of .the suit and at the obtention [?] of the judgment upon which the execution enjoined was issued, he did not live there, nor has he lived there since.

The constitution protects from forced sale the homestead of a family. This protection requires no aid from legislation. It is made secure, by the fundamental law of the state, from all invasion by any legal process, and is intended to be made, by this constitutional provision, the inviolable sanctuary of the family: not merely the head of the family, but of all its members, whether consisting of husband, wife, and children, or any other combination of human beings, living together in a common interest and having a common object in their pursuits and occupations.

Such a combination of persons, thus circumstanced, necessarily constitute a family. And if the property on which they are domiciled belongs to either, or to all, so living together, it equally comes within the purview of the constitutional guaranty, and is in fact a homestead, and cannot be subjected to forced sale. It is the homestead of a family, and not the head of the family simply, which is protected. What constitutes a family ?

Lexicographers, from whom, in our literary education, we derive all our knowledge of the correct import of words, tell us that the word “family,” in its origin, meant servants; that this was the signification of the primitive word. It now, however, has a more comprehensive meaning, and embraces a collective body of persons living together in one house, or within the curtilage, in legal phrase. This may be assumed as the generic description of a family. It may, and no doubt does, have many specific senses in which it is often used, arising from the paucity of our own as well as of all other languages.

Examining and criticizing the word in all its specific uses and appropriations, it will be most obvious that it was in none of these specific senses the term family was used in the constitution. Its use, in such a sense, would have been objectless and nugatory, because it would be wholly impracticable in its application to the civil affairs of mankind.

It was most certainly used in its generic sense, embracing a household, composed of parents and children, or other relatives, or domestics and servants: in short, every collective body of persons living together within the same curtilage, subsisting in common, directing their attention to a common object, the promotion of their mutual interests and social happiness. These must have been the characteristics of the “family” contemplated by the framers of the constitution in engrafting this provision upon it.

It is, besides, tbe most popular acceptation of the word, and is more fully in unison with the beneficent conception of the political power of the state, in making so humane and so wise a concession as that of the inviolability of a homestead from all invasion by legal process. The facts in this case, however, do not bring the appellant within the scope of this constitutional protection. He does not appear to have had any family, either in a popular, legal, or constitutional sense, living upon the premises, at any time, from the acquisition of the property down to the trial of the cause.

He therefore cannot claim an exemption of the property from the satisfaction of his just debts. Wherefore, the judgment is Affirmed.