Wright v. Straub

64 Tex. 64

• Court: Texas Supreme Court
• Decided: July 1, 1885
• Docket: Case No. 4716
• Status: Published

Opinion

Watts, J. Com. App.

Matthieson, a married man, and the head of a family, was, at the time the constitution took effect, April 18, 1876, occupying the lot in controversy as a place of business, and continued to so occupy it until the house was destroyed by fire, September, 1877. Therefore it became part of his homestead April 18, 1876, and so continued as long as he occupied it as a place to exercise his calling or business. Miller v. Menke, 56 Tex., 539.

During the time the lot was clothed with the homestead quality it was sold by the collector for the tax assessed against Matthieson, and also his wife, for the year 1876. This tax for which the lot was sold was assessed upon various tracts of land, including the lot in controversy.

Our constitution protects the homestead from forced sale for taxes, except such as may be assessed against it. Const., art. 16, sec. 50; Lufkin v. Galveston, 58 Tex., 545.

This sale of the homestead, although made to pay in part the taxes assessed thereon, also was made to pay taxes assessed upon other property, and must be considered as inhibited by the constitution. Penn v. Clemans, 19 Ia., 372; Stewart v. Corbin, 25 Ia., 144.

According to the principle declared in Iken v. Olenick, 42 Tex., 196, the lot, though occupied by Matthieson as a place of business, did not constitute a part of. his homestead prior to the adoption of the present constitution.

It appears that the certified copy of the judgment of the district court of Grayson county, in favor of the City Bank of Sherman, and against Campbell and Matthieson, was duly recorded in Lamar county, where the lot is situated, on the 23d day of June, 1875, and that executions had been regularly issued thereon, and that the sheriff’s sale of the lot was made August 7, 1877.

Evidently the judgment lien attached to the, lot at the time the certified copy was recorded, and continued as a subsisting lien until the sale, unless destroyed by the adoption of our present constitution.

It seems to be settled in this state that a judgment lien takes precedence of a subsequently acquired homestead right. Gage v. Neblett, 57 Tex., 374.

Obviously it was not the intention of the convention, in extending the homestead exemption, to divest or interfere with previously existing rights. Const., art. 16, sec. 18.

But if it had been the intention of the convention to divest or destroy previously existing judgment liens, in extending the exemption, and it had been so declared, still it has been held by the supreme court of the United States that an existing judgment lien is such a vested right as is beyond the power of a constitutional convention to divest or destroy. Gunn v. Barry, 15 Wall., 610; Edwards v. Kearzey, 6 Otto, 607.

Then, as the lien of the judgment attached to the lot at the time the certified copy was recorded, and continued a subsisting lien until the sheriff’s sale, there is no doubt but that the title vested in the City Bank of Sherman by virtue of the sale and sheriff’s deed.

Now, as against that title, appellant secured no right through the trust deed to McDonald, for the reason that the trust deed was not filed for record for several days after the certified copy of the judgment had been duly registered.

Our conclusion is that the judgment ought to be affirmed.

Judgment affirmed.

[Opinion adopted April 24, 1885.]