
    SCHNEIDER v. BRAY.
    (Supreme Court of Texas,
    
      Austin Term, 1883
    
      Appeal from Lamar County)
    
    1. Exemption — Voluntary Exchange of Property. Where a debtor voluntarily exchanges property specifically exempt from execution for property not exempt, he cannot claim exemption for the property received in exchange; if, however, the property received in exchange is of the species exempt by law, it is protected from execution for debt.
    2. Same—Involuntary Exchange of Property. Where the exchange is involuntary, the property received is exempt, whether it is of a class protected from execution or not. E.g.: Insurance money received for property destroyed by fire.
   Willie, C. J.,

in delivering the opinion of the Court, said; In this case there is no question but that the appellee, as surviving wife, was entitled to the homestead occupied by herself and her deceased husband at the time of his death, so long as she chose to reside therein; nor is there any controversy between herself and the descendants of her husband as to her exchange of it for another homestead. The controversy is between herself and her creditors, whose debts accrued subsequent to exchange, as to her right to have the new residence exempted as against an attachment and exepution sued out in satisfaction of such debts. The precise question thus raised is for the first time before this Court for decision.

Exchanges made of exempt property for other property are classified by the books into two kinds, voluntary and involuntary, and in reference to each of these, general principles are laid down which are generally concurred in by a majority of the American Courts, where questions in reference to such exchanges have been raised. In reference to the first class, it is held by several Courts that where a debtor voluntarily exchanges property specifically exempt from execution for property not exempt, he cannot claim exemption for the property received in exchange. (Thompson on Homesteads, Sec. 745; Andrews v. Rowan, 28 How. Pr., 126; Friedlander v. Mahoney, 31 la., 315; Scott v. Brigham, 27 Vt., 561; Edson v. Trask, 22 Ib., 18; Wyman v. Smith, 2 Sandf., 332.) The reason of this general rule is well stated in the last case, and is generally adopted and acted upon in others. This is in effect that “the law designates the species of property it exempts, and does not allow the debtor to choose for himself in respect to the species or kind of property to be exempted. To allow this would be to substitute the choice of the debtor for the provisions of the statute. When the exempt property is voluntarily sold and converted into money or other property not also exempt, the right is gone.” The reason thus given for the rule proves the rule itself to be that, if the property received in exchange is of the class or character not exempt by law, it is subject to execution. It also establishes the converse principle, that if the property received in exchange is of the species exempted by law, it will not be subject to execution for the debts of its new owner. This is illustrated by the cases cited above, in which the rule has been enforced. In the case of Wyman v. Smith, a soldier’s bounty, which was exempt, was exchanged for horses and harness, which were not exempt. In Friedlander v. Mahoney, policies of insurance exempted by the laws of Iowa were exchanged for merchandise subject to execution, and so with the rest. In all of which cases the unexempted property acquired in the exchange was held liable to execution.

Applying this rule to the articles exempt by our own Constitution, should the horses, oxen, cows, furniture, farming utensils, tools of trade, etc., exempted, be exchanged for money, merchandise, or the like, the property thus acquired not being of the classes exempted by our laws, would be subject to execution for the new owner’s debts. On the other hand, if horses, cows, furniture, etc., should be received in exchange not beyond the limit prescribed by law, they would not be subject to such execution. A man may exchange his horse for another, or for five head of cattle, if he has none, or his tools of trade for others that suit him better, and no one would think of having such newly-acquired property levied on under execution against him. Is the homestead any exception to the general rule on this subject? And if not, why may not a surviving wife holding one by an undoubted right exchange it for another and hold the latter exempt from execution for her debts?

In making the exemptions our Constitution and statutes selected articles, most certainly, contributing to the ease, comfort, and independence of the family. They allow the family a home and its furniture, horses and cattle to labor for them and conti'ibute to their sustenance, and the tools of trade for the head of the family to use in making a support. Should any of these articles become useless, decayed, or not of so much service as would others of the same species, the law does not compel the owner to keep them, but he may exchange them for others of more service to him. Otherwise the beneficent effects of the law would be in a great measure defeated. And so with the homestead. The houses may be untenantable and the owner unable to repair them or build others in their place. The land may be barren and the owner unable to make a living for himself or family upon it. He may find a place where he could pursue his trade or calling with profit, which he cannot do at his then homestead. The law will certainly not prohibit him from exchanging his home for more comfortable quarters; his barren for productive land, or fasten him to a place where he must starve, under the penalty of that, if he exchanges for the comfort and sustenance of himself and family, he shall sacrifice his home to creditors. And so in the present case we find a woman living all alone at a homestead where she is separate from neighbors who could comfort and protect her in her loneliness, and where she can make nothing for her support, and must, if she depends On her own exertions, eventually starve, but who has an opportunity to exchange this rural homestead for one in town, and receive in addition a small amount of money; who can probably make a livelihood in the town, and will at least have protection and society there. Is she not to be allowed to make such a desirable exchange? We do not think the law contemplated any such strict confinement to any particular home, provided the new one was within the limit of the exemption, as it was in this case. Creditors have lost nothing by it, for there is no more property withdrawn from their reach than there was before the exchange was made.

In cases of involuntary exchange of property the newly-acquired article becomes exempt, whether it was of a class originally protected from execution or not; as,in a case where the exempt property is destroyed by fire, the insurance- money received from it is exempt, whereas money received upon a voluntary sale would not be; and in such cases it makes no difference whether the article destroyed 'be a piece of personalty or a dwelling-house upon the homestead. (Thompson on Homesteads, Sec. 784.) This has been decided in our own State. (See Fay v. Cameron, 55 Tex., 58.)

Whilst our decision in this case is not put upon the ground that the exchange of homesteads was involuntary, it might not be considered an altogether voluntary act, when a woman in the situation of the appellee was compelled to make the exchange in order to secure a support, which she could not possibly make at the homestead .that she then occupied.

Judgment Affirmed.  