
    MILNER v. McDANIEL et al.
    No. 5573.
    Supreme Court of Texas.
    March 18, 1931.
    , Loftin & Hall and W. G. Eustis, all of Henrietta, for plaintiff in error.
    G. B. Smedley, of Fort Worth, and Donald & Donald, of Bowie, for defendants in error.
   LEDDX, C.

G. W. McDaniel, Sr., and his wife, Josephine, used and occupied 160 acres of land as a rural homestead. The wife died in 1918, leaving surviving her husband, one minor son eighteen years of age, and several adult children. The father and minor son continued to use and occupy the homestead until in June, 1926, when the same was partitioned between the father and children, 80 acres being set aside to the father and the same amount to the children. Thereafter the father, for a valuable consideration, sold the SO acres set apart to him in the partition to his son G. W. McDaniel, Jr.

Plaintiff in error brought this suit to foreclose upon the premises aforesaid a judgment lien, which he averred was created by the abstracting of a judgment obtained by him in 1910 against G. W. McDaniel, Sr., and T. L. McDaniel, his son.

The case whs tried before the court, without the intervention of a jury, and judgment rendered foreclosing plaintiff in error’s judgment lien upon the 80 acres owned by the children of G. W. McDaniel. Upon appeal the Court of Oivil Appeals, 19 S.W.(2d) 426, reformed the judgment so as to decree a foreclosure only as against T. L. McDaniel on his one-fourteenth interest in the 80-acre' tract of land.

The legal question arising under the facts may be thus stated: Since the property upon which the lien was sought to be foreclosed was the homestead of G. W. McDaniel, Sr., and Josephine McDaniel, did such homestead, upon the death of Josephine McDaniel, pass to the surviving husband and her heirs free from community debts?

Plaintiff in error invokes the doctrine announced by the Supreme Court in Givens v. Hudson, 64 Tex. 471, to sustain his contention that the property in question was subject to the payment of community 'debts. The rule announced in that case cannot assist the plaintiff in error in maintaining the proposition that the homestead in this case was subject to the payment of the community debts of G. W. McDaniel, Sr. For such decision only goes to the extent of declaring that, upon the death of the husband or wife, if there is no remaining constituent of the family entitled to occupy the homestead as such, it descends and vests in the adult heirs subject to the payment of community debts.

Here it is shown that upon the death of the wife the husband and minor son were entitled, under the express provisions of the Constitution (article 16, § 52), as constituent members of the family remaining, to occupy the property as a homestead free from interference by creditors. It did not become subject to sale for community debts, even when the minor became of age and the property ceased to be used for homestead purposes.

It has often been determined by the Supreme Court of this state that, upon the death of an owner using and occupying property as a homestead, when there remains a constituent member of the family (wife, husband, minor child, or unmarried daughter), the title passes bo all of the heirs and is subject only to the right of use by those entitled to occupy it as a homestead; the estate thus taken by the héirs to the property is unburdened by the claims of creditors of the community estate. Childers v. Henderson, 79 Tex. 664, 13 S. W. 481; Cameron v. Morris, 83 Tex. 14, 18 S. W. 422; Zwernemann v. Von Rosenberg, 76 Tex. 522, 13 S. W. 485; Lacy v. Lockett, 82 Tex. 190, 17 S. W. 916, 918; Roots v. Robertson, 93 Tex. 365, 55 S. W. 308.

In the case of Lacy v. Lockett, above cited, the situation was practically identical with that here involved, and the holding is decisive of the proposition that even the adult heirs of Mrs. McDaniel took the homestead free from community debts. This conclusion is clear from the following language used by the court: “Upon the death of N. H. Cook his wife and daughter inherited or took the title to the land composing the homestead in equal portions, and upon the decease of Mrs. Cook the title to the whole property (except that part already sold) vested in the appellant Mrs. Annie G. Lacy. As the exemption from forced sale continued from the time it was set apart to her mother, and as it was thereafter not liable for the debts of 'the deceased -father, as we have seen, it follows that she inherited the property absolutely, and free from the claims of the creditors or the administrator.”

At the death of Mrs. McDaniel the homestead property descended and vested in her husband and children in equal portions with the right of occupancy of the entire tract by the father and minor son. Since there remained constituent members of the family, the premises retained the homestead character and therefore passed free from liability for community debts. When the property descended free from such obligations, the exemption wias a -continuing one; hence a creditor holding a community debt by recording his judgment could lawfully acquire'ño lien thereon.

This principle was reaffirmed in Childers v. Henderson, 76 Tex. 664, 13 S. W. 481, 482. Judge Henry, speaking for the court in discussing the question, said: “The constitution takes it for granted that the protection from forced sale of the homestead ‘of a family’ will enure to the benefit of every surviving constituent of the family, without express mention, as is shown by its providing against its being partitioned contrary to the right of -occupancy of the surviving husband, wife, and minor children, without mention of creditors.”

In the above case Chief Justice Stayton dissented, stating that it seemed contrary to the spirit as well as the letter of the law to exempt the adult heirs’ portion of the.homestead from sale for the ancestor’s debts because the interest -of the unmarried daughter was not subject to sale. -The doctrine announced by the majority, however, has been continuously followed and reaffirmed in numerous cases, so that it may now be said to be the settled law of this state.

In Cameron v. Morris, 83 Tex. 14, 18 S. W. 422, it was decided that upon the death of the husband the surviving wife took the homestead free from community debts, and that it remained free from such debts when at her death it descended and vested in her children. The holding was based upon the theory that, since the wife took the estate free from liability for community debts, it was unconditionally and unalterably so -protected and could not later be subjected to the husband’s debts at her death. In other words, there vested in her children such a title to the property as she obtained, which was one not charged with liability for community debts.

■ In Zwernemann v. Von Rosenberg, 76 Tex. 522, 13 S. W. 485, the trial court adjudicated the rights of the parties in accord with the action of the lower court in this case. The conclusion was reached that the homestead was subject to sale for community debts, but ■ that the purchaser thereunder should be postponed in his possession until the minors, who were entitled to occupy it during minority, had reached their majority. The Supreme Court, however, declined to accept this interpretation of the homestead provisions of the Constitution and statutes. Judge Gaines, in rendering the opinion for the court, held that, upon the death of the parents, since there were constituent members of the family entitled to the use of the premises for a homestead, it descended and vested in all the heirs free from community debts.

The foregoing authorities firmly establish ■ the principle that a homestead cannot be subjected to the payment of community debts when there remains any constituent member of a family, as designated by the Constitution and statutes of this state, to take and occupy it as such. Under such circumstances it descends and vests in all the heirs free from community debts, even though some of the heirs may be adults and not entitled to any homestead interest in the property.

The Court of Civil Appeals properly reformed the judgment of the trial court so as to deny plaintiff in error a foreclosure. against any interest in this property for the debts of the father. It was also correct in decreeing foreclosure against the one-fourteenth interest inherited from his mother by T. E. McDaniel; for in this instance the judgment, was rendered against him for his individual debt. Such judgment was properly abstracted, and therefore a lien was created against his interest in the land.

The judgment of the Court of Civil Appeals is affirmed.

CURETON, C. X

The foregoing opinion is adopted as the opinion of the Supreme Court, and judgment will be entered in accordance therewith.  