Inge v. Cain

Citations

• 65 Tex. 75
• 1885 Tex. LEXIS 313

Syllabus

<p>1. Homestead—Constitution of 1845—Lien.—Under the constitution of 1845, a lien upon the homestead, given by the husband, or by the husband and wife, which could be effective only through the instrumentality of a forced sale, was not void or voidable, but inoperative. (Sampson v. Williamson, 6 Tex.) If the lien could be foreclosed without a forced sale it was valid and effective. (Bomback v. Sykes, 24 Tex., 217.)</p> <p>2. Same.—The lien could be foreclosed by forced sale of the property if the homestead use had ceased at the sale of the property. (Lee v. Kingsbury, 13 Tex., 68; Stewart v. Mackay, 16 Tex., 56.)</p> <p>3. Same—Constitution of 1869.—The constitution of 1869 was not different in these respects from that of 1845. (Jordan v. Peak, 38 Tex., 429 ; Petty v. Barrett, 37 Tex., 84.)</p> <p>4. Homestead—Use.—Under the constitutions of 1845, 1866 and 1869, in order for several city lots to constitute one homestead, they had to be used for homestead purposes, not as places of business for the head of the family. (Iken & Co. v. Olenick, 42 Tex., 195 ; overruling Hancock v. Morgan, 17 Tex., 582, etc.)</p> <p>5. Same—Constitution of 1876.—The constitution of 1876 extended the exemption to the place of business of the head of the family, and it was declared that no mortgage, trust deed or other lien upon homesteads, “ shall ever be valid,” and hence they could never be operative, whether made by the husband or by the husband and wife.</p> <p>6 Same—Construction.—What can not “ ever be valid ” is never valid, and what is never valid is always void. No distinction was intended between mortgages and other liens, and sales involving conditions of defeasance. (Former Texas decisions reviewed, and California decisions considered.)</p> <p>7. Homestead—Abandonment.—See statement of case for facts held insufficient to constitute abandonment of homestead.</p> <p>8. Same.—A husband, without the concurrence of his wife, may divest his place of business of the homestead protect