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It is provided that "on the death of the husband or wife, or both, the homestead shall descend and vest in like manner as other real property of the deceased, and shall be governed by the same laws of descent and distribution." Section 52. This court has uniformly held that the sole purpose of the foregoing provisions of said section 52 was to change the rule of descent, as declared in Horn v. Arnold, 52 Tex. 164, under the Probate Act of 1848, and to make the rule of descent of homestead property thereafter uniform, regardless of whether the estate of the deceased father was solvent or insolvent. It did not deal with exemptions, or with rights of creators. Bonding Company v. Logan, supra, and cases cited.

In pursuance of the general design to protect the family homestead from forced sale, except as indicated above, a conception which had its origin in Texas, our Legislature has enacted various laws, including the following which were in force when the case at bar arose, and now remains operative:

Art. 3235. (1869) (1817)-"When a person dies, leaving a lawful will, all of his estate devised or bequeathed by such will shall vest immediately in the devisees or legatees; and all the estate of such person, not devised or bequeathed, shall vest immediately in his heirs at law; but all of such estate, whether devised or bequeathed or not, except such as may be exempted by law from the payment of debts,

of the deceased all such property of the estate as may be exempt from execution or forced sale by the Constitution and laws of the state, with the exception of any exemption of one year's supply of provisions." Id.

Art. 3414. (2047) (1994)—“In case there should not be among the effects of the deceased all or be the duty of the court to make a reasonable any of the specific articles so exempted, it shall allowance in lieu thereof, to be paid to such widow and children, or such of them as there may be, as hereinafter directed."

Art. 3421. (2054) (2001)-"If, upon a final settlement of such estate, it shall appear that the same is solvent, the exempted property, except the homestead, which has been set apart to the widow or children, or both, together with any allowance that has been received by them in lieu thereof, shall be subject to partition and distribution among the heirs and distributees of such estate in like manner as the other property of the estate." Id.

Art. 3422. (2055) (2002)-"Should the estate, upon final settlement, prove to be insolvent, the title of the widow and children to all the propunder the provisions of this and of the precederty and allowances set apart or paid to them, ing chapter, shall be absolute, and shall not be taken for any of the debts of the estate, except as hereinafter provided." Id.

Art. 3423. (2056) (2003)-"In ascertaining whether an estate is solvent or insolvent, the exempt property set apart to the widow or children, or the allowance in lieu thereof, and chapter, shall not be estimated or considered the allowance provided for in the preceding

as assets of the estate." Id.

""

Art. 3424. (2057) (2004)—“The homestead shall not be partitioned among the heirs of the deceased during the lifetime of the widow, or so long as she may elect to use or occupy the same as a homestead, or so long as the guardian of the minor children of the deceased may be permitted, under the order of the proper court having the jurisdiction, to use and occupy the same." Const. art. 16, § 52. Art. 3425. (2058) (2005)-"When the widow dies or sells her interest in the homestead, or elects to no longer use or occupy the same as a homestead, and when the proper court no longer permits the guardian of the minor children to use and occupy the same as a homestead, it may be partitioned among the respective owners thereof in like manner as other property held in _common." Act Aug. 9, 1876.

Art. 3426. (2059) (2006)-"The homestead rights of the widow and children of deceased are the same whether the homestead be the separate property of the deceased or community property between the widow and the deceased, and the respective interests of such widow and children shall be the same in one case as in the other."

Id. * of such testator or intestate; and,

whenever a person dies intestate, all of his estate shall vest immediately in his heirs at law, but with the exceptions aforesaid shall still be liable and subject in their hands to the payment of the debts of the intestate; but, upon the issuance of letters testamentary or of administration upon any such estate, the executor or administrator shall have the right to the possession of the estate as it existed at the death of the testator or intestate, with the exception aforesaid; and it shall be the duty of such executor or administrator to recover possession of and hold such estate in trust to be disposed of in accordance with law." Act of August 9, 1876.

Art. 3413. (2046) (1993)—"At the first term of the court after an inventory, appraisement and list of claims have been returned, it shall be the duty of the court, by an order entered upon the minutes, to set apart for the use and benefit of the widow and minor children and un

Art. 3427. (2060) (2007)-"The homestead shall not be liable for the payment of any of the debts of the estate, except for the purchase money thereof, the taxes due thereon or for work and material used in constructing improvements thereon; and in this last case only when the work and material are contracted for in writing, with the consent of the wife, giv en in the same manner as required in making a sale and conveyance of the homestead." Const. art. 16, § 50.

Art. 3428. (2061) (2008)-"The exempted property, other than the homestead, or any allowance made in lieu thereof, shall be liable for the payment of the funeral expenses and the expenses of last sickness of deceased, when presented within the time prescribed therefor; but such property shall not be liable for any other debts of the estate." Act of Aug. 9, 1876.

Several of the above-quoted articles were amendments of, or based upon, statutes enact

84), and should be considered in connection alone. None has ever been suggested, so far with them and decisions thereunder. Act as we know. The issue of solvency or insolJan. 9, 1843, Pasch. Dig. art. 1061; Act May vency is not treated by the Constitution or 11, 1846, Pasch. Dig. art. 1107; Act March the statutes as a proper basis for that dis20, 1848, Pasch. Dig. art. 1305; Horn v. Ar- tinction. Even equity makes no appeal in the nold, 52 Tex. 161, and cases cited; Act Aug. premises; her pleading voice is stilled by rea15, 1870, Pasch. Dig. art. 5487; Scott v. Cun- son of the fact that, except said three eliminatningham, 60 Tex. 566. See, also, Zwernemann ed items, which must, in any event, be paid, v. Von Rosenberg, 76 Tex. 522, 13 S. W. 485, no creditor of the decedent can justly or leunder said Constitution of 1876. gally say that he extended credit based upon the homestead property in the sense that he expected, in any contingency not involving abandonment thereof, to be able to subject the homestead property to his debt.

[2] Regardless of all questions, as to solvency or insolvency, a surviving spouse, whether husband or wife, is entitled to hold and use the homestead, exempt from forced sale for payment of his or her own debts, so long as he or she may choose to do so, even though such spouse be the sole remaining member of the family. Kessler v. Draub, 52 Tex. 575, 36 Am. Rep. 727; Blum v. Gaines, 57 Tex. 119; Trawick v. Harris, 8 Tex. 312; Zapp v. Strohmeyer, 75 Tex. 639, 13 S. W. 9; Childers v. Henderson, 76 Tex. 664, 13 S. W. 481. However, subsequent abandonment of the homestead by either spouse would end the right of such one to further claim exemption against debts of that character. Cox v. Shropshire, 25 Tex. 113; Shannon v. Gray, 59 Tex. 251; O'Brien v. Woeltz, 94 Tex. 148, 58 S. W. 943, 59 S. W. 535, 86 Am. St. Rep. 829.

But exemption of the homestead from debts of the deceased husband, where the wife, or a minor child, or an unmarried daughter remaining with the family, survives the decedent, is a different matter, and rests upon principles, which have their roots in the Constitution and in the above-mentioned statutes, and which are discussed at length in the Logan Case, and in cases therein cited; those discussions being, however, with special | reference to insolvent estates.

The main general purpose of our Constitution and laws in this regard has been to exempt the homestead from forced sale, except for purchase money, taxes, and improvements thereon. The three exceptions emphasize that purpose. If the lien for any such item be properly fixed, it may be enforced against homestead property of a decedent, just as against any other property, whether the estate of such decedent be solvent or not. Eliminating those three items from the equation, we have left the main purpose as to homesteads. Its conception is philanthropic and humanitarian; its outline is bold and comforting, like "the shadow of a great rock in a weary land"; its operation and effect are coextensive and contemporaneous with lawful possession and exercise of homestead rights. Perhaps as supplying unequivocal and possibly added reason in support of the decision announced therein, many, and probably all, of the adjudicated cases, as we have seen, have mentioned, and some of them have stressed possibly, the fact that the estate of the decedent was insolvent; but, upon principle, we can see no sufficient reason for

*

Upon consideration of the opinions in said cases, it is apparent from some of them that some confusion of ideas, and of principles as well, has grown out of the fact that article 3422 expressly provides that, in insolvent estates, "the title of the widow and children to all the property and allowances set apart * to them, under the provisions of this and of the preceding chapter, shall be absolute, and shall not be taken for any of the debts of the estate, except as hereinafter provided;" while article 3421, supra, which relates to solvent estates, makes no corresponding declaration concerning “title” to the exempt property, and does not provide that such exempt property (with said exceptions) "shall not be taken for any debts of the estate."

Distinguished counsel for plaintiffs in error insist that this presents a proper instance for application of the well-known rule of statutory construction, "Expressio unis exclusio alterius est;" but we do not think so.

The difficulty and confusion which grow out of said difference between said article 3422 and said article 3421 disappear when a careful analysis of said article 3422 is made, remembering that the former had its inception in section 45 of the probate Act of March 20, 1848 (3 Gam. Laws, p. 249), one original and primary purpose of which was to prescribe a rule for descent, though not of distribution, of exempt property, including the homestead, under circumstances therein defined, a purpose which was declared in Horn v. Arnold, 52 Tex. 161, and cases cited, prior to the adoption of our present Constitution, and abruptly ended, as this court has repeatedly held, by such adoption; it being provided, as we have seen in section 52 thereof, supra, that the course of descent of all homestead property in cases of intestacy shall thenceforth be the same as that of other property, and as fixed by the general statute of descent and distribution.

Although our present Constitution, including said section 52, was ratified by the people of Texas on February 15, 1876, and thereupon became operative, and despite the direction given by said section 52 as to the course of descent of homestead property, at variance, as we have seen, with the provisions of said Act of 1848, the Legislature carried forward,

216

(Tex.

the same provision as to the course of de- thereinbefore set out, are not violative of, but scent the title of homestead property, where are in perfect harmony with, said provisions the estate proves insolvent, expressly declar- of our existing Constitution, and with all ing that "the title of the widow and children other existing statutes concerning exempto all the property and allowances set apart tions, and so, as a matter of course, have not or paid to them, under the provisions of this been held invalid. But it by no means foland of the preceding chapter shall be abso- lows logically that, lute," and then, as if by way of declaring a vent, the converse is true, or that the rule as when an estate is solrestriction or limitation upon the effect of the to homesteads is otherwise. foregoing sweeping language relating to such vestiture of absolute title, added the provision that such exempt property and allowances "shall not be taken away except as hereinafter provided," the exceptions referred to being for purchase-money taxes, and work cr material which are set out in said article 3427, relating to "homesteads," and "funeral expenses and expenses of last sickness of deceased, when presented within the time therefor," relating, not to homesteads, but to other "exempted property" and allowances in lieu thereof. In other words, the primary purpose of the words in article 3422 which deal with exemptions was, not to declare an exemption which did not otherwise or theretofore exist, and limit that exemption to insolvent estates, but to limit and restrict the force and effect of the preceding provisions of that article which declare a rule of descent of homestead property.

ty when the estate is solvent is a matter to The rule to be applied to homestead properbe determined by other considerations, from a study of our Constitution and all related statutes, including said article 3422 as an incidental, but not as a vitally essential, part. design of homestead protection thus outlined In view of the general and comprehensive in our Constitution and worked out in detail in our statutes, which were themselves enacted in the light of earlier statutes under former Constitutions and decisions construing them, we regard it as clear, upon principle, and accordingly hold, that our laws concerning exemption of homesteads relate to solvent and to insolvent estates alike, and that in no event in the case at bar, under the ascertained facts, can the homestead property of the decedent, William Hoefling, Sr., be subjected to the debt of plaintiffs in error.

estate is in fact solvent, excluding the home-
No reason has been suggested why, if his
stead as provided by said article 3423, said
debt may not be enforced against such other
portion of said estate; but upon that point
further, as it is not in issue.
we do not feel called upon to say anything

Said judgment of the Court of Civil Ap

After said rule of descent was declared unconstitutional, in 1890, because of conflict with said section 52 (76 Tex. 522, 13 S. W. 485), said words of limitation were allowed to remain, and still appear, upon the statute book, although, in so far at least as homestead property is concerned, they are "as idle as a painted ship upon a painted ocean," un-peals is affirmed. less it be to clearly express, as to insolvent estates, a rule concerning exemptions of homestead property which existed aforetime as to that character of property, whether the estate be solvent or insolvent, and which forms a highly important feature of the great design and plan of homestead protection as wrought out in our Constitution and statutes, even if said article 3422 be omitted from consideration.

MALDANADO v. LANE, Comptroller.
(No. 2605.)

COURTS (§ 207*)-JURISDICTION OF SUPREME
(Supreme Court of Texas. May 20, 1914.)
COURT-MANDAMUS.

material allegations in the application for man-
damus, the Supreme Court cannot try the is-
Where respondent denies under oath the
cation.
sues of fact raised, but must dismiss the appli-

Indeed, all of the provisions of said article 3422, including the above-mentioned unconstitutional portion thereof, have been permitted to remain upon our statute book, as so enacted in 1876, through more than a generation, and through the three general revisions of 1879, 1895, and 1911, although in numerous opinions, beginning in 1890 with the Zwerne-lator. B. F. Looney, Atty. Gen., and W. A. Jas. D. Walthall, of San Antonio, for remann Case in 76 Tex. 522, 13 S. W. 485, this Keeling, Asst. Atty. Gen., for respondent. court has unequivocally declared their unconstitutionality. See cases cited in the Logan Case, supra.

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Cent. Dig. § 756; Dec. Dig. § 207.*]
[Ed. Note.-For other cases, see Courts,

of F. Maldanado against W. P. Lane, CompApplication for mandamus on the relation troiler. Application dismissed.

BROWN, C. J. The respondent has under oath denied the material allegations of

It is true that the other portions-the live the applicant for mandamus, which makes portions of said article 3422, which so de-issues of fact which this court cannot try : clare said limitation upon the rule of descent therefore the application is dismissed.

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

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COMBES et al. v. STRINGER et al.
(No. 2355.)

(Supreme Court of Texas. June 3, 1914.)
1. STIPULATIONS (§ 14*)-CONSTRUCTION AND
OPERATION-STIPULATIONS AS TO EVIDENCE.

and F. A. Combes, in the United States Court at Houston, but, upon pleas to its jurisdiction being filed, an agreement was made under which they refiled their suit on November 25, 1906, in the district court of Montgomery county, under a stipulation that the rights of the parties should be de

In trespass to try title to a tract of land, 160 acres of which defendant claimed by limitation, it was agreed by the parties that plain-termined as though this suit had been origtiffs had the record title, subject to be defeated inally filed therein on September 8, 1906. only by defendant's claim of limitation. Defendant introduced evidence of a survey of 160 acres by his predecessor in 1894 and of possession of a portion thereof for the statutory period. Plaintiff introduced a number of deeds, the first of which was dated in 1899, and evidence of possession of a part of the tract by his

predecessor in title before the statutory period had run in defendant's favor, and it was then admitted by the parties that the chain of title derived through such deeds was the only chain of title under which plaintiffs claimed. Held that, giving effect to both these agreements, it was admitted that plaintiffs' record title was derived through the deed made in 1899, and as a consequence that, when his predecessor in title took possession subsequent to 1899, he then owned the record title.

The action is one of trespass to try title to two tracts of land; the first embracing 2,289 acres and the second 587% acres, out of the T. J. Williams survey in Montgomery county. Defendants Stringer and Prewitt answered, separately, each disclaiming all of the land sued for except the tract of 160 acres described by metes and bounds which he claimed under the statute of limitation of ten years; each describing and claiming a certain piece of land different from that described and claimed by the other. The other defendants, all of whom asserted contingent interests as attorneys' fees, claimed subject to the rights of Stringer and Prewitt, respectively.

[Ed. Note. For other cases, see Stipulations, Cent. Dig. §§ 24-37; Dec. Dig. § 14.*]

2. ADVERSE POSSESSION (§ 100*)-EXTENT OF POSSESSION.

A party, who surveyed 160 acres of land and took actual possession of a small portion thereof, acquired title by limitation only to the portion in his actual possession, where, before limitations had run, the owner of the record title to a tract, including such 160 acres, took possession of a part thereof, thereby acquiring constructive possession of the whole tract except that in the actual possession of the adverse claimant.

[Ed. Note.-For other cases, see Adverse Possession, Cent. Dig. §§ 547-574; Dec. Dig. § 100.*]

3. APPEAL AND ERROR (§ 1175*)-DISPOSITION OF CAUSE-RENDERING FINAL JUDGMENT.

In trespass to try title, in which a judgment for defendant for 160 acres in the tract involved in favor of defendant was reversed on the ground that he acquired title by limitations only to the land of which he had actual possession, though defendant by his pleading and evidence furnished no field notes or other sufficient description of the land of which he held actual possession for the statutory period, he would be given an opportunity to furnish such description instead of rendering final judgment in plaintiffs' favor for the whole tract.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 4573-4587; Dec. Dig. § 1175.*]

Error to Court of Civil Appeals of Third Supreme Judicial District.

A

Action by S. M. Combes and another against J. Z. Stringer and others. judgment in favor of the defendant named was affirmed by the Court of Civil Appeals (142 S. W. 668) and plaintiffs bring error. Reversed and remanded.

The case was tried without a jury. The trial court rendered judgment for plaintiffs for all of the lands sued for except the tract of 160 acres so claimed by Stringer which it awarded to him. From so much of said judgment as was in Stringer's favor, plaintiffs appealed to the Court of Civil Appeals, which affirmed the judgment of the trial court, whereupon appellants applied to this court for a writ of error, which was granted.

Andrews, Ball & Streetman, of Houston, for plaintiffs in error. C. W. Nugent and W. N. Foster, both of Conroe, for defendant

in error.

[1] The questions which are presented here arise under Stringer's plea of limitation and two agreements of the parties and certain other evidence, as follows, viz.:

Upon the trial the following agreement of the parties was introduced:

have the record title to the land in controversy, "It is agreed that the plaintiffs in the case subject to be defeated only by the claim of limitation as pleaded by the defendants, and that, unless they have title by limitation, plaintiffs' are entitled to recover the land sued for."

Plaintiffs thereupon rested their case, after which defendants undertook to show title by limitation. There was evidence which showed that McShan, from whom Stringer bought, had said 160 acres surveyed out first in 1894, and that the only portion of it which had ever been held in actual possession was a small inclosed tract, the precise quantity and description of which are not definitely shown by the pleadings or evidence.

After the introduction by defendant Stringer of his testimony in support of his plea of limitation, plaintiffs introduced in evidence five written instruments covering said large tract of 2,2894 acres, which included the 160 acres claimed by Stringer, as follows: (1) Deed dated April 1, 1899, filed for record December 7, 1899, from Margaret

HAWKINS, J. This action was originally filed on September 8, 1906, by S. M. Combes

Brown and husband, Edmund Brown, to H. W. Downey. Defendants proved that, just after purchasing said large tract, Downey, through a tenant, took possession of a part of it and put camps and buildings thereon and men therein to hold said large tract for him, claiming it under said recorded deed to him. (2) A release of the vendor's lien retained in said deed to Downey. (3) A deed from said Downey and his brother to the Ives Lumber Company, dated November 4, 1899, recorded December 7, 1899. (4) A deed from the Ives Lumber Company to Rogers, dated March 26, 1904, recorded January 24, 1905. (5) A deed from Rogers to plaintiffs, dated January 18, 1905, recorded January 24, 1905.

Thereupon the following agreement was made by the parties:

"It is admitted that the chain of title derived through the deeds introduced in evidence by plaintiffs, consisting in part of the last foregoing five instruments, is the only chain of title under which F. A. and S. M. Combes claim this land"-the reference therein being to the

aforesaid five instruments.

at which time it appears that appellee was only in actual possession of some 12 or 15 acres of the 160 acres claimed by him, and that therefore appellants' constructive possession extended to their entire tract of 2,289 acres, of which the 160 acres formed a part, for which reason they assert appellee was not entitled to recover except that part thereof which he had actually inclosed, to wit, some 12 or 15 acres. Citing, in support of this contention, Evitts v. Roth, 61 Tex. 81; Whitehead v. Foley, 28 Tex. 289; Hunnicutt v. Peyton, 102 U. S. 333 [26 L. Ed. 113]. This contention would be true if it were conceded that appellants had title to the 2,2894 acres at the time they took possession of such portion thereof in 1899, but the record fails to disclose that appellants had title to said land at said time, unless it can be said that the agreement above mentioned gave them such title; but by it appellees insist that they only admitted that the plaintiffs in the case had record title to the land in controversy at the time that suit was filed. This agreement does not state when they acquired such record title; and, in the absence of such statement, we are inclined to believe that it should be construed to mean that it was only intended to be admitted thereby that plaintiff, at the time that the case was tried, had the record title to the land in controversy. And, as the suit was not brought until 1906, appellee's title to the 160 acres was complete by limitation at the time the agreement was made, for which reason this assignment is overruled."

Plaintiffs in error contend that Stringer's title by limitation should be restricted to the land of which he and those under whom he claims held actual possession for the statutory period, and should not be extended to include enough more to make up 160 acres. In support of that contention they say the legal effect of said two agreements of the parties is to conclusively show that said deed to Downey carried the record title to said entire 2,2894-acre tract, embracing all the land claimed by Stringer; and thereupon they argue that inasmuch as Downey went into actual possession of a portion of said large tract under that recorded deed before the completion of said period of limitation of ten years relied upon by Stringer, and thereunder asserted title to all of said large tract, Downey's possession should be treated as extended, by operation of law, to the boundaries of said large tract, excepting only said small inclosed tract which was so held in actual and adverse possession, and that such constructive possession by Downey and those claiming under him was superior to the constructive possession of Stringer and those under whom he claims of [3] Plaintiffs in error further contend so much of said small inclosed tract, the that, because the pleading and evidence failstatutory complement of 160 acres, and stop-ed to furnish field notes or other sufficient ped the running of the statute of limitations description of such portion of said land as in favor of Stringer and those under whom was so held in actual possession for said he claims as to all of said 160 acres except- statutory period, no judgment therefor in ing said small inclosed tract so held in ac- favor of Stringer can be framed, and that, tual adverse possession. as a consequence, we should here render judgment against him, as to it, citing the following decisions of Courts of Civil Appeals: Wilcoxon v. Howard, 26 Tex. Civ. App. 281, 62 S. W. 802, 63 S. W. 938; Sparks v. Hall, 29 Tex. Civ. App. 177, 67 S. W. 916; Thompson v. Dutton, 69 S. W. 996. We do not think so. We believe that, while

"By the second assignment it is insisted that the court erred in rendering judgment for appellee, because it is asserted that plaintiffs in 1899 acquired title to the 2,2894 acres of land, the more commendable practice would have

The action of the Court of Civil Appeals thereon, and the reasoning upon which it was based, are shown in the following excerpt from its opinion in this case, which may be found in 142 S. W. 668:

[2] The issue turns upon the effect to be given to said agreements. We find no conflict between them; effect should be given to both. Together they admit that, at the time of the trial, plaintiffs had the record title to the land in controversy; that said title was derived through said deed to Downey; and, as a necessary consequence, that said deed carried the record title to said land. Under that construction of said agreements, and under the other facts shown by the evidence, it follows, and the Court of Civil Appeals, in that view of the matter, concedes, in effect, that said contention and argument of plaintiffs in error are sound. Stringer was not entitled to a judgment in his favor for any land other than that which he and those under whom he claims, had held in actual possession for ten years prior to the filing of this action. Whitehead v. Foley, 28 Tex. 268; Evitts v. Roth, 61 Tex. 81, and authorities therein cited; Parker v. Baines, 65 Tex. 605.

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