
    GONZALES v. GONZALES.
    (No. 4104.)
    (Supreme Court of Texas.
    June 10, 1925.)
    1. Homestead @=I 18(2) — Legislature cannot confer exclusive possession or power of disposition on either spouse.
    Under Const, art. 16, §§ 50, 51, 52, husband has homestead estate in wife’s land so long as devoted to homestead uses, including right to continue in possession and enjoyment thereof as homestead, until abandonment or conveyance by deed of both parties, and Legislature cannot confer on either spouse exclusive possession or power to dispose of homestead, at least while they remain husband and wife and continue to perform their marital duties.
    2. Homestead @=>120 — Deprivation of husband’s homestead rights in wife’s separate property not Warranted by statute.
    Under Acts 1841, p. 144, requiring husband to join in conveyance of wife’s separate property, the act of 1846, carried into Rev. St. 1879, 1895, and 1911 (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 1114, 1115), xlcts 1913, c. 32, Acts 1917, c. 194, and Acts 1921, c. 130 (Vernon’s’ Ann. Civ. St. Supp. 1922, art. 4621), husband cannot be deprived of- homestead rights in such property without valid district court order; order authorizing her to sign her name alone; without joinder of husband, to “any” deed, transfer, or incumbrance thereof being a nullity.
    Error. to Court of Civil Appeals of Eighth Supreme Judicial District.
    Action by Louisa M. de Gonzales against S. G. Gonzales and others* Judgment for plaintiff affirmed by Court of Civil Appeals (256 S. W. 658), and the named defendant brings error.
    Reversed and rendered.'
    Croom, Goldstein & Croom, of El Paso, for plaintiff in error.
    A. W. Norcop, of 031 Paso, for defendant in error.
   GREENWOOD, J.

Defendant in error Louisa M. de Gonzales sued plaintiff in error S. G. Gonzales, her husband, and others, for possession of certain premises alleged to be separate property of the defendant in error, and for an injunction to prevent any interference with defendant in error’s right to solely possess, manage, control, and * dispose of the' premises. Plaintiff in error filed an answer, containing an averment, among others, that the premises were the family homestead of himself and defendant in error.

The trial court found that the premises belonged to the separate estate of defendant in error, and were used for the purposes of a home by plaintiff in error and defendant in error, and rendered judgment awarding defendant in error possession of the homestead, and enjoining plaintiff in error, the husband, from interfering with her possession, control and disposition of same. The Court of Civil Appeals at El Paso, while finding that the parties were husband and wife and that the premises sued for constituted the family home, affirmed the judgment of the district court, 256 S. W. 658.

The judgment of the Court of Civil Appeals is founded on the conclusion that under the present statutes a homestead, which belongs to the separate estate of a married woman, is subject to her sole possession, management, control, and disposition, though she be neither divorced nor permanently separated from her sane husband. 256 S. W. 662.

Plaintiff in error assails the judgments Pf the courts below on the ground that the wife has no right to possession, to the exclusion of the husband, of so much of her separate property as is admittedly the residence homestead, save under extraordinary circumstances not disclosed by this record, and that the wife’s right of • sole management, control, and disposition of her separate property does not ordinarily extend to the homestead.

In our opinion, tie; Constitution guarantees to each spouse certain rights in land used for homestead purposes, and' the LegisT lature is powerless to deprive either spouse of such rights as come within the protection of the Constitution. Such rights attach as soon as the property acquires its homestead character, whether the property belongs to the separate estate of either spouse or to the community. Sections 50, 51, and 52, article 16, Constitution. Among the rights of the husband thus protected in a homestead established on land belonging to the wife, or of the wife in a homestead established on land belonging to the husband, is the right of possession and enjoyment. Stallings v. Hullum, 89 Tex. 434, 35 S. W. 2. The right continues, at least while each partner performs his or her marital duties, until lost by abandonment of the homestead or-by its conveyance by deed of both partners. So solicitous is the Constitution of this right of either party to the marriage that it expressly continues it, even after death of the owner of, the homestead property, so long as the survivor of the marriage may elect to possess and use such property for homestead purposes. Ball v. Lowell, 56 Tex. 583; Pressley’s Heirs v. Robinson, 57 Tex. 457; Eubank v. Landram, 59 Tex. 249.

The opinion of Chief Justice Gaines, in Stallings v. Hullum, supra, announcing that the homestead right of one spouse in land belonging to the other extends beyond the right of possession ánd enjoyment, is in line with the decision in Hargadene v. Whitfield, 71 Tex. 488, 9 S. W. 478, that “the homestead right, when fixed, is an estate in the land; it is more than a mere privilege of occupancy.” With the Constitution conferring a homestead estate on either spouse in land belonging to the other so long as it is devoted to homestead uses, and with such estate including the right to continue in the possession and enjoyment of the property as homestead, it is plainly impossible for the Legislature to confer on either spouse exclusive possession of or power of diposition over the homestead at least while the parties are husband and wife and continue to perform their correlative duties and obligations.

However, we are' unable to find support in the statutes for the judgment depriving plaintiff in error of his homestead rights. The act of 1841 (Acts 1841, p. 144) required the husband to join in the wife’s conveyance of any estate or interest in land which was her separate property. The act of 1846, carried into the Revised Statutes of 1879, 1895, and 1911, required the husband to join in a conveyance of land which was either the wife’s separate property or the homestead of the family. Articles 559, 560, Revised Statutes of 1879; articles 635, 636, Revised Statutes of 1895; articles 1114, 1115, Vernon’s Sayles’ Texas Civil Statutes. The act of 1913 contained an explicit prohibition against disposition of the homestead, whether the separate property of the husband or the wife, or community property, save by the joint conveyance of both the husband and the wife. Acts 1913, c. 32, pp. 61, 62, 16 Gammel’s Laws of Texas. The acts of 1917 and 1921 modify the act of 1913, so as to undertake to empower the district court, in term time or vacation, to make an order authorizing the wife, without her husband’s joinder, to sell and convey the homestead, if it belongs to the wife’s separate estate and the husband is insane or has permanently abandoned his wife, upon satisfactory proof that the conveyance will be advantageous to the wife. Acts 1917, c. 194, pp. 436, 437; Acts 1921, c. 130, pp. 251, 252 (Vernon’s Ann. Civ. St. Supp. 1922, art. 4621).

It is quite unnecessary to consider the legal effect of a district court order granted under the provisions of the act of 1917 or of the act of 1921, authorizing a wife to convey a homestead belonging to her separate estate, for a definite and specified consideration. For no such order was ever passed with respect to the homestead here in controversy. It seems that the district court of El Paso county did enter an order, on defendant in error’s application, purporting to entitle her “to sign her name alone, without the joinder of her husband, to any deed or transfer or incumbrance relating to her separate property in the same way and manner as though she were a single woman.” There is nothing in the statutes to warrant the district court to confer any such general and blanket authority on a married woman, and the order was a nullity as determined by both of the courts below. In the absence of some valid district court order, the statutes recognize and endeavor to safeguard the very rights of the husband in and to the homestead which defendant in error’s suit sought to destroy, and which rights are fully guaranteed by the Constitution itself.

Defendant in error is entitled to recover nothing by her suit. There ‘seems no occasion to disturb the judgment against plaintiff in error on his cross-action to establish that the premises belonged to the community estate of himself and wife.

It is therefore ordered that the judgments of the district court and of the Court of Civil Appeals be reversed, and that judgment be here rendered that defendant in error take nothing by her suit, and that plaintiff in error take nothing by his cross-action, and that plaintiff in error recover all costs. 
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