R. W. Campbell v. L. D. Elliott et al., 52 Tex. 151

Bonner, Associate Justice. Under the view we take of the material issue presented by the record in this case, it does not become necessary to decide fully that vexed question, What is the homestead estate ? Heither does it become necessary to decide what would be the rights of a mortgagee, or one claiming under him under a mortgage of the homestead, when the same were sought to be enforced by sale made after the property had ceased to be the homestead. This case differs from that of Stewart v.

Mackey, 16 Tex., 56, in this: that here the mortgage was made by the husband alone after the homestead rights had attached, and was foreclosed without the wife being made a party, and a forced sale under judicial process made when the property was still the actual homestead of the husband and wife;—there, the mortgage on the homestead was executed by both husband and wife, and the same was sought to be foreclosed after the property had ceased to be the homestead, and after a new one had been acquired. It also differs from the cases of Brewer v. Wall, 28 Tex., 585 ; Cross v.

Everts, 28 Tex., 523, and other cases by which it is held that a contract 'made by the husband alone to convey the homestead is not void, but that damages may be recovered for its breach. These decisions are based upon the ground, not that a specific performance of the contract could be enforced, but that, by the consent or death of the wife, or otherwise, the homestead rights might cease to exist, after which the contract could be lawfully performed.

Under the particular phraseology of the Constitutions and statutes of several of the States of the Union, in which it is provided that, to make a valid conveyance of the homestead, the wife must join in the deed, it has been decided in many cases that a conveyance by the husband alone is void, not only as to the wife, but as to him also, and that neither would be estopped from asserting the homestead rights against the alienee. (Thomp. on H. and E., sec. 474, citing Dye v. Mann, 10 Mich., 291; Amphlett v. Hibbard, 29 Mich., 298; Alley v. Bay, 9 Iowa, 509; Larson v. Reynolds, 13 Iowa, 579; Richards v.

Chace, 2 Gray, 385; Morris v. Ward, 5 Kan., 239; Ayres v. Brobasco, 14 Kan., 190; Kennedy v. Stacey, 57 Tenn., (Bax.,) 220; Iloge v. Hollister, 2 Tenn. Ch., 606; Williams v. Starr, 5 Wis., 534, 550; Hait v. Houle, 19 Wis., 472; Revalk v. Kraemer, 8 Cal., 66; Barber v. Babel, 36 Cal., 11; Sears v. Dixon, 33 Cal., 326.) The same principle is also broadly announced in the case of Rogers v. Renshaw, 37 Tex., 625 ; but as the facts of that case are not fully stated, and as the wife herself was there suing for the homestead, it is not quoted with approval or disapproval.

There are other decisions of this court which hold, that, under certain circumstances, voluntary sales of the homestead, made by the husband alone, are not void absolutely, but voidable only; as, where the wife, with the husband, abandoned the old homestead after the sale, and left the State or acquired a new one.

In accord with the doctrine that, the husband alone should not have the power to incumber the homestead, and as showing the tendency of our legislation on this question, our present Constitution provides that * * * “ Ro 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 such mortgage, or trust deed, or other lien shall have been created by the husband alone, or together with his wife; and all pretended sales of the homestead involving any condition of defeasance shall be void.” (Const. of 1875, art. 16, sec. 50.) This is based upon the theory that the husband, there being also a living wife, does not alone represent the homestead rights of the family.

According to Mr.

Freeman, the homestead estate is more analogous to an estate by entirety than that of joint tenancy, they having alike the four unities of interest, title, time, and possession, while the estate, by entirety, has the fifth unity of person ; that this, unlike an estate by joint tenancy, can be vested in but two natural persons only, who are regarded as but one in law; who are seized not of an undivided moiety of the whole, but each takes an entirety, and are seized per tout, but not per my; who cannot alienate separately, but must alienate jointly; who cannot sever at pleasure, but hold an estate which, while it remains theirs, is inseverable; who cannot have partition unless in a divorce proceeding severing their matrimonial relations, and who have not the right of survivorship, but upon the decease of either spouse the other continues to hold the entire homestead estate as such. (Freem. on Co ten. and Part., secs. 49, 64, 86.) [Opinion delivered November 7, 1879.] The Constitution in force at the date of the mortgage and sale under consideration provided that * * * “The homestead of a family * * * shall not be subject to forced sale for any debts hereafter contracted, nor shall the owner, if a married man, be at liberty to alienate the same, unless by the consent of the wife, in such manner as the Legislature may hereafter point out.” (Const. of 1845, art. 7, sec. 22.) We are of opinion that it was intended by this language to so absolutely prohibit forced sales of the homestead as to render them invalid and ineffectual, in and of themselves, without further act of the parties, to convey any legal right. (Sampson v.

Williamson, 6 Tex., 102.) In this view, the sale under consideration being a forced sale of the homestead, and not to satisfy an incumbrance for the purchase-money, or one otherwise created prior to the time when the homestead right attached, did not vest in the purchaser the title to the homestead, or to his vendee the right to be subrogated to his bid at the foreclosure sale.

We, however, as before indicated, do not express any opinion as to the rights of the parties claiming under the mortgage, nor whether, if their claim is not barred by limitation, they may not still be enforced by a new proceeding against the property, if the same has ceased to be the homestead. This is a question not free from serious difficulty, and is not necessarily involved in this case. Judgment affirmed. Affirmed.