
    Margaret Watkins v. J. B. Davis.
    (Case No. 4762.)
    1. Collateral attack — Judgment.— The judgment of the court of a justice of the peace, rendered against a defendant in a proceeding in which service of citation on him is shown by the record, cannot be collaterally attacked on the ground that no service was made, and that the record which stated to the contrary was false.
    2. Homestead.— The surviving wife, though without children, is entitled to the protection afforded the homestead from forced sale after the husband’s death, so long as she uses it as homestead, or she may exchange it for another homestead, which will receive like protection. And it would seem that if the old homestead is sold with the intention of reinvesting the money in another, the unpaid purchase money cannot be reached by garnishment, or subjected by other process to the payment of debts.
    Appeal from Dallas. Tried below before the Hon. Geo. K. Aldredge.
    March 11, 1881, appellee Davis brought this suit of trespass to try title to recover one and one-half acres of land described in the petition, claiming the same through a judgment rendered in a justice court against appellant Kovember 29, 1880, in favor of one Tice, and execution, levy, sale and purchase by virtue thereof.
    Appellant claimed that the property was her homestead and exempt from forced sale; and further, that she was not in fact served with citation, and had no other notice of the pendency of the suit. Verdict and judgment for appellee.
    By the assignment of errors it was claimed that the court erred in excluding the evidence offered for the purpose of impeaching the judgment of the justice of the peace; also in refusing to submit to the jury the issue as to the homestead rights of appellant.
    
      Thompson & Clint, for appellant.
    
      Stemmons & Field, for appellee.
   Watts, J. Com. App.—

As now organized all of our courts are limited in their respective jurisdiction as to the subject matter upon which they may each adjudicate, as well as to the division of judicial powers among them. Still they were all created and their respective judicial powers apportioned by the constitution. And, while acting within the scope of the jurisdiction thus conferred, they cannot be considered strictly as inferior courts of special jurisdiction, in favor of whose proceedings no presumptions of regularity will be indulged. Guilford v. Love, 49 Tex., 715.

However, that appellant was duly served with citation in the justice’s court is made to affirmatively appear from the record and papers in that case. Therefore the judgment therein rendered against her would not be subject to collateral attack, upon the ground that the record was false, and in fact no service was had; and especially without showing that appellee was chargeable with notice of that fact before he purchased the land by virtue of that judgment. Murchison v. White, 54 Tex., 81. Hence, we are of the opinion that the court did not err in excluding the evidence offered for the purpose of impeaching the judgment of the justice of the peace.

The other assignments of error, when considered together, present the question as to whether or not the land in controversy was, at the time of the levy and sale, protected by the constitution as the homestead of the appellant. It seems that at the time her husband died, and for some time prior thereto, they were occupying a lot in the city of Dallas as their homestead; they had no children, and the family consisted of the two; after the husband’s death, she being old, infirm and barely able to make a support for herself, continued to occupy the place until it was about to be sold for the accumulated taxes thereon, and which she was not able to pay. For the purpose of saving the property from tax sale, and with the intention of purchasing the land in controversy with the proceeds for a homestead, she sold and conveyed the city homestead, and, with the proceeds arising therefrom, she purchased that in controversy, and moved upon, and ivas occupying, the same as a homestead at the time of the levy and sale at which appellee purchased.

It is well settled that as between appellant and her creditors, the homestead upon which she and her husband were residing at the time of his death would be protected from forced sale so long as she chose to occupy it as such, notwithstanding they had no children and she no other family than herself. Kessler v. Draub, 52 Tex., 575.

It is also settled that she might have exchanged the former homestead for the land in controversy, and by occupying the latter as a homestead it would be protected from forced sale. Schneider v. Bray, 59 Tex., 668..

There is a distinction generally recognized with reference to the conversion of that class of property which is exempt into the class which is not exempt, between a voluntary and an involuntary change or conversion. And it is held, as a general rule, that where property of the first class is voluntarily converted into property of the other class, that the latter will not be exempt from forced sale.

But when, as it is claimed in this case, the homestead was sold for the purpose and with the then present and specific intent to reinvest the proceeds in another, it has been held in some of the states that the proceeds of the former homestead would not be subject to garnishment while in the process of the change and reinvestment. Watkins v. Blatschinski, 40 Wis., 347.

In legal effect such a transaction does not materially differ from an exchange of one homestead for another. True, the one is converted into money before the other is acquired, but when that is done with the specific intention and for the purpose of acquiring another, the object being to secure one homestead by disposing of another, no good reason is perceived why that might not be accomplished without subjecting either the proceeds or the home in which it is invested to forced sale.

Our courts have at all times construed the exemption laws most favorably to those for whom the benefits were intended. And to hold that when a citizen, under the circumstances of this case, could not change in this manner one homestead for another without incurring the loss of the exemptions, and especially when no nonexempt property is placed beyond the reach of the creditor by reason of the exchange, would be to reverse the rule of construction, and would result in a strict construction of these laws against those whom they were intended to benefit. Such a construction ■compels the owner to remain at one particular place, without regard to its surroundings or his necessities. Taking the case as sought to be made by appellant as an illustration of the results of such a construction, and,its vice becomes apparent. It is claimed that the lot in the city with the improvements thereon was all the property owned by appellant; that she was old, infirm and barely able to make a meager support, and could not pay the tax upon the lot, which was then about being sold for the accumulated taxes. Would the spirit of our constitution warrant the assumption that the only alternative presented to her under such state of case would be either to remain until it is swept from her by a.tax sale, or else to convert it into proceeds which the creditor may subject to his debt? If so, the intention to protect the unfortunate and needy, which is the foundation upon which the homestead exemption has ever been supposed to rest, is'a delusion. Such a result could only flow from an erroneous construction of that provision of the organic law which was especially intended to secure a home to the unfortunate in the day of their calamity. Can it be truly said that when the security for the protection is greatest, that then it is to be withdrawn?

When the sale of the homestead is made with the l>ona fide intention of investing the proceeds in another, and that is done, the latter will be protected from forced sale.

We are of the opinion that the court erred in refusing to submit this view of the case to the jury, and therefore the judgment ought to be reversed and the cause remanded.

Reversed and remanded.

[Opinion adopted April 18, 1884.]  