It is not pretended that the lot in controversy, consisting of about two acres and used as a garden for appellee's family, was exempt as a place to exercise his calling or business, which was `that of a traveling man,' but the exemption is claimed upon the sole ground that the same was `used for purposes of a home.'
"The case made by the undisputed evidence is this: About eight years before the trial appellee acquired a homestead in the southeastern part of the town of Bowie, upon a lot 70 by 140 feet, where he has ever since resided with his family, the improvements on this lot consisting of a dwelling-house, barn, cow-lot, etc. About five years later he purchased the two-acre lot in controversy in the northern part of the town, and distant a half mile or more from his residence, with the intention of building and moving on it `when he got able to do so,' or when he could sell the place where he lived in the southeast part of the town. With this in view, he had it fenced and planted with fruit trees, grape vines, and blackberries. He also caused it to be cultivated in vegetables of various kinds each year thereafter, which were used by his *Page 285 family `in home consumption.' Both lots are situated within the corporate limits of Bowie, a town of 3500 or 4000 people, but in different parts of the town altogether. `The territory intervening is cut up into streets and lots and blocks, and is pretty well built up with residences and settled up.'
"The Constitution of this State exempts the homestead of the family from execution, and provides that an urban homestead `shall consist of a lot or lots not to exceed in value $5000, at the time of their designation as a homestead, without reference to the value of any improvements thereon, provided that the same shall be used for the purposes of a home, or as a place to exercise the calling or business of the head of a family.'
"In Waggener v. Haskell, 35 Southwestern Reporter, 1, it was held that this constitutional definition of the homestead was intended to settle the previous conflict of judicial construction upon that question, it having first been decided, as expressed in the opinion of Chief Justice Hemphill in Pryor v. Stone,19 Tex. 371, that the homestead might include, besides the place of residence, `a place where the head or members may pursue such business or avocation as may be necessary for the support and comfort of the family,' though remote from the place of residence; but in the opinion of Justice Moore in Iken v. Olenick, 42 Tex. 195, the exemption beyond the `mansion house' was restricted to `the land which, from its use, as well as its contiguity, it is to be supposed was intended to be exempted from the demands of creditors, as part and parcel of the land connected with and necessary for the use and enjoyment of the mansion house,' thus excluding the place of business, if not otherwise a part of the homestead.
"In this connection it may not be amiss to quote from Thompson on Homesteads and Exemptions, section 120, page 105, the following characteristic comment: `We shall also see that the doctrine of the early Texas cases — that a man can have a homestead scattered all over a town, regardless of intervening streets, alleys, lots, or blocks — has been exploded in that State, denied in Kansas, and can not be regarded as sound law anywhere.'
"Says Justice Denman in Waggener v. Haskell, supra, referring to the above quotation from the Constitution: `It will be observed that the first proviso includes (1) land used for the purposes of a home, as indicated in the opinion of Justice Moore; and (2) land used as a place to exercise the calling or business of the head of a family, as contended by Chief Justice Hemphill.'
"The plain meaning of the constitutional definition then is, that the lot or lots claimed to be exempt must, first of all, bedesignated as the homestead, either residence or business or both, and if, as in this case, only a residence homestead is claimed, the definition given by Judge Moore, and not that of Chief Justice Hemphill, should apply. It therefore seems to me that the lot in question, besides being acquired and designated for a different purpose, was not so situated and used *Page 286 in connection with the `mansion house' as to make it `appendant to and part thereof,' it being entirely too remote from the residence for `it to be supposed' that it `was intended to be exempted from the demands of creditors, as part and parcel of the land connected with and necessary for the use and enjoyment of the mansion house.' It can not fairly be said in such case to have been used for the purposes of a home, however beneficial its use may have been to the family, and whatever might be the effect of such use were the lot in the vicinity of the `mansion house,' so as to be appurtenant thereto.
"In my opinion, the separated lots in a town or city exempted by the Constitution as the place and for the purposes of the home should be situated at least approximately together, and not, as in this instance, a half mile apart and on opposite sides of the town — in totally different neighborhoods. It was this anomalous idea of a home `scattered far and wide' which our Supreme Court repudiated in Iken v. Olenick, supra, the governing principle being thus further stated in that case: `The visible occupation of the homestead, or mansion house, or lands adjoining or in actual use, as appendant to and part thereof, is notice to creditors and purchases dealing with the husband.'
"The correctness of that decision has never since been questioned, as it is undoubtedly sound and in line with the authorities everywhere, but the latest expression of our Supreme Court is to the effect that it has received constitutional sanction, though the Constitution went further and exempted, in addition, as the place of business, what was held not to be exempt in Iken v. Olenick as a part of the home premises. Waggener v. Haskell, supra; Thomp. on Homesteads and Exemp., sec. 127.
"What was said by Judge Stayton in Brooks v. Chatham, 57 Tex. 31 [57 Tex. 31], was with reference to a rural homestead, and it will be observed that the proviso above quoted from section 51, article 16, of the Constitution applies as well to the parcels of land in the country as to the lots of land in a town or city. That is, one or more parcels of the land constituting the homestead in the country, if not used for the purposes of a home, may still be exempt as the place to exercise the calling of the head of the family, that of farming and the like. Hence it is immaterial that such parcel or parcels may be remote from that upon which is situated the dwelling house and home of the family. The homesteader still gets the substantial benefit, it is true, of the doctrine of the early Texas cases which was repudiated in Iken v. Olenick, but it is under the constitutional provision exempting the place to exercise the calling or business of the head of the family, and not that exempting what is designated and used merely for the purposes of a home.
"As the business of a `traveling man' or `drummer' is of such nature as not to admit of a place for its exercise, he is without the pale of the provision exempting a place of business. His homestead exemption is not broader, therefore, than that covered by the definition in Iken v. Olenick, for he can only have what for the sake of convenience is termed *Page 287 the residence homestead. Nor does the law allow him two such homesteads, though in reality that seems to be what is claimed in this case; for the effect of the findings of fact, in my opinion, is that the lot in question, situated in the northern part of Bowie, was acquired and improved, not as a part of the existing homestead in the southeast part of the town, but to become a new and different homestead at an indefinite time in future, it being used in the meantime for just such purposes as a farm, orchard, or garden in the country would be used. That is, it was never designated by concurrent intention and use as a part of the already established homestead, but the use made of it in connection therewith was temporary merely.
"Upon both of these grounds I am constrained to dissent from the conclusion of the majority, and that, too, notwithstanding the pathetic appeal made in their opinion in behalf of the `poor drummer.' `The children of the poor must eat,' say they, to which, without dissenting from a proposition so humane and benevolent, I answer, let them be fed by him who is responsible for their existence in the world, and upon whom therefore naturally and justly devolves the duty, rather than by judicial construction at the expense of the creditor, who may, perchance, be also poor, with children of his own to feed. If he is not equal to the task, and the `poor man's burden' must be borne by strangers, then open wide the door of charity and let others besides the creditor in. But until the law provides for the `poor drummer' some exemption in lieu of a place to exercise the business or calling of the head of the family, it is not within the province of the courts to make any such provision merely because his children `must eat.'"