
    WHITEMAN et al. v. BURKEY et al.
    (No. 4306.)
    (Supreme Court of Texas.
    April 7, 1926.)
    1. Homestead <@=>143.
    Children held entitled to partition of excess value of property on which homestead of father and deceased mother was situated (Const, art. 16, §§ 50-62).
    2. Homestead <@=>l.
    There are no homestead exemptions except those provided by law.
    3. Homestead <@=>90.
    Const, art. 16, § 50, protects the homestead from forced sale for payment of all debts except those enumerated therein.
    4. Homestead <@=>5>.
    Courts liberally construed the Constitution and statutes to protect homestead rights.
    5. Homestead <@=>62, 66.
    Courts cannot protect that which is not homestead, and excess above 200 acres and above $5,000 is subject to laws applicable to nonexempt property (Const, art. 16, §§ 51, 52).
    6. Partition <@=>78 — If there is other property subject to partition sufficient to account for excess in homestead, it should be so applied (Const, art. 16, § 52).
    In view of Const, art. 16, § 52, in partitioning property of an estate, if there is other property subject to partition sufficient to account for excess in homestead, it should be so applied, and excess along with homestead right awarded to claimant.
    7. Homestead <@=>143 — If property fails to bring more than value of improvements and amount of homestead exemption, no sale should be declared (Const, art. 16, § 52).
    In view- of Const, art. 16, § 52, in partitioning property of an estate, when offered for sale, if property fails to bring more than value of improvements and amount of homestead exemption, ho sale should be declared, and thereafter claimant should be quieted in his homestead claim to property and no subsequent sale ordered.
    <S=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Certified Question from Court of Civil Appeals of First Supreme Judicial District.
    Partition toy Emy Burkey Whiteman and others against Fred J. Burkey and others. Judgment for defendants, and plaintiffs bring error to the Court of Civil Appeals, which court certified a question to the Supreme Court.
    Question answered.
    S. H. Brashear, of Houston, for plaintiffs in error.
    J. Dixie Smith and Johnson & Gilmore, all of Houston, for defendants in error.
   PIERSON, J.

The certificate of the honorable Court of Civil Appeals is as follows:

“This is a suit for an accounting and for partition brought by appellants against the ap-pellees.
“The plaintiffs are the children of the defendant Fred J. Burkey and his deceased wife, and sue for recovery of one-half of the community estate of their father and their deceased mother.
“A portion of the property sought to be partitioned is a lot with improvements thereon, situated in the city of Houston, which was the homestead of defendant and his wife at the time of her death in 1921, and is now occupied and claimed by defendant as his homestead.
“The evidence shows that in 1911, when defendant and wife erected improvements and established their homestead on this lot, the value of the lot was $0,500. The value of the improvements placed on the lot is $10,000. The evidence further shows that the property is incapable of partition.
“Upon these facts appellants claim that the $1,500, excess value of the lot at the time it was designated as a homestead is subject to partition, and for this purpose the homestead of. the survivor of the community can be sold.
“We are unable to reach any satisfactory conclusion as to the proper decision of the question presented by this contention, and deem it advisable to certify for your decision the question: ‘Upon the facts stated, are appellants entitled to a partition of the excess value of the lot on which the homestead of their father and deceased mother is situated ?’ ”

We answer the question in the affirmative.

The answer to the question is controlled by the principles announced in the case of Clement v. First National Bank of Paris (Tex. Sup.) 282 S. W. 558, opinion delivered March 24, 1926, and eases followed, to wit, Wood v. Wheeler, 7 Tex. 13; North v. Shearn, 15 Tex. 175; Paschal v. Cushman, 26 Tex. 74; Hargadene v. Whitfield, 71 Tex. 482, 9 S. W. 475; Harrison et al. v. First National Bank of Louisville (Tex. Civ. App.) 224 S. W. 269; and Id. (Tex. Com. App.) 238 S. W. 209.

There are no exemptions except those provided by law. Section 50, art. 16, of our state Constitution, protects the homestead from forced sale for the payment of all debts except those enumerated therein. Section 51 defines and limits the homestead, providing that a rural homestead “shall consist of not more than two hundred acres of land,” and likewise “the homestead in a city, town or village, shall consist of lot or lots, not to exceed in value five thousand dollars” at the time of designation, etc. The homestead here is urban, and at the time of its designation exceeded $5,000 in value by $1,500.

From the beginning in 7 Texas it has been uniformly held that the excess was subject to forced sale for the payment of debts, and where the property was indivisible a method for its extraction was provided by sale and division of the proceeds, fully protecting, however, in the sale, the homestead claimant’s rights to his full $5,000 exemption and his full value of his improvements, as an-nouneed in Clement v. Bank, supra. Those Owning an interest in the property certainly would he on as favorable footing as- a creditor. Since the Constitution limits the homestead to a fixed value, that above would not be homestead, the same as in case of debt.

Section 52 of art. 16 of the Constitution provides that the homestead “shall not be partitioned among the heirs of the deceased during the lifetime of the surviving husband or wife,” etc. The courts have always given a liberal construction to the Constitution and Statutes to protect the homestead rights. However, the courts cannot protect that which is not homestead, and the excess above 200 acres and above $5,000 has alike been uniformly held not to be homestead, and consequently subject to the laws applicable to nonexempt property.

It should be observed that in partitioning the property of an estate, if there is other property subject to partition sufficient to account for the excess in the homestead, it should be so applied, and the excess along with the homestead right awarded to the homestead claimant. ■

Also, when offered for sale, if the property fails to bring more than the value of- the improvements and the amount of the homestead exemption, no sale should be declared, and thereafter the homestead claimant should be quieted in his homestead claim to the property, and no further or subsequent sale be ordered.

The answer as above made will be certified,  