Lizzie Griffie et al. v. Elizabeth Maxey et al, 58 Tex. 210

Stayton, Associate Justice. The action of the court in excluding the decree of the probate court, setting aside the property in controversy to Mrs. Griffie and her children as homestead, is unimportant, as their rights in this regard do not depend upon the action of the probate court, if the property was homestead in fact at the time of the death of John Griffie. Sossaman v. Powell, 21 Tex., 664. Nor is it important whether the property was owned by John Griffie and Elijah Griffie as partners, at the time the trust deed for the benefit of Mrs.

Maxey was executed, or not, for prior to the death of John Griffie, he had acquired the title and interest of Elijah Griffie, who alone, if any one, could object to the appropriation of the interest therein ‘of John Griffie to homestead uses by him. Clements v. Lacy, 51 Tex., 150; Williams v. Wethered, 37 Tex., 132. It does not, however, appear that the court found that the property in controversy was partnership property. This would not necessarily result from the fact that the property was bought by the two, and was used at one time for partnership purposes.

Freeman on Cotenancy, 114. ° It is not necessary for us to determine whether the use of the property by John Griffie as his place of business, before and at the time the deed of trust in favor of Mrs. Maxey was executed, he with his family living in rented premises, impressed upon the property a homestead character; for it is certainly true that the execution of the trust deed did not prevent him from appropriating his interest in the property to homestead purposes.

But while this is true, had he lived, such use of the property could not have divested the lien given by him; upon his death, however, the property, to the extent of the interest which he- owned at the time the trust deed was” executed, the same having become in fact his homestead, was discharged of the lien, and his family were entitled to hold it freed from the claims of all creditors, his estate being insolvent. Reeves v. Petty, 44 Tex., 250; McLane v. Paschal, 44 Tex., 366.

It matters not what the lien may be, unless it be such as under the constitution may be enforced by the sale of the homestead, upon the death of the head of the family, it must give way to the homestead exemption. Persons in taking liens contract with reference to this fact, and cannot complain if the event occurs which they might have foreseen would defeat the lien.

Where there is no homestead in fact, property upon which liens have been given may be sold to raise a reasonable allowance in lieu thereof, unless the lien “ has been given by the husband and wife, acknowledged in a manner legally binding to secure creditors,” or unless the lien be for the purchase money of the property. B. S., 2000.

Hence the court erred in adjudging that one-half of the property, which, in the absence of evidence to the contrary, will be presumed to have been the interest of John Griffie in the property at the time the trust deed was executed, was subject to forced sale for the payment of the debt due to Mrs. Maxey. Freeman on Cotenancy, 105.

The next inquiry which arises is, could John Griffie, by purchasing the interest of Elijah Griffie after the execution of the deed of trust (the due execution of which the appellants, under the facts of this case, are estopped to deny), impose upon that interest the homestead character, so as to defeat the lien thereon by his death? We are of the opinion that this could not be done.

At the time the lien was given, the parties are held to have known, and to have contracted with reference thereto, that the lien might be defeated by the death of the party who gave the lien, in order to protect his family in the homestead, it becoming such, or by sale to raise the allowance in lieu thereof; but they did not contract with reference to the sale of the property by the person who gave the lien to some other person, and that the death of such person should divest the lien, to provide homestead or allowance in lieu thereof for his family.

Such not being the legal construction contemplated by the parties at the time the lien was created, the right to enforce the lien, to the extent it was given by Elijah Griffie, cannot thus be impaired or destroyed. It appears with reasonable certainty, that, after Elijah Griffie sold his interest in the lot in controversy to John Griffie, he, with the separate funds of his wife, erected a dwelling house and other improvements on the lot. To the extent that the separate funds of Mrs. Griffie were thus used, she is entitled to protection.

The cause was tried by the court, but there are not sufficient facts contained in the record to enable this court to render such a judgment as the district court should have rendered, had all the necessary parties been before the court. The action was discontinued as to one of the children of John Griffie, not served, without whom a valid partition could not bo made. The judgment will be reversed and the cause remanded, with such instructions as will enable the court below, after the child of John Griffie is made a party defendant, to properly dispose of the case.

The property should be partitioned into two equal parts, if it can be done without reference to the increased value thereof on account of the improvements made with the separate funds of Mrs. Griffie, and that part upon which the dwelling house stands should be set apart to Mrs. Griffie and the children of John Griffie, without prejudice to the right of Mrs. Griffie and the children hereafter to adjust their respective rights therein, and the other half of the property should be subjected to sale through the probate court for the satisfaction of the debt due to Mrs.

Maxey. [Opinion delivered December 19, 1882.] If this cannot be done, the property should be sold and the proceeds so distributed as to give to Mrs. Griffie and the children one-half of the proceeds, after a reasonable allowance is made to Mrs. Griffie for the increased value of the lot by reason of che improvements made with her funds, and the remainder of the proceeds of sale, so far as may be necessary, should be applied to the payment of the debt of Mrs. Maxey. The judgment is reversed and the cause remanded. Beversed ahd remanded.