Every constitution of the state of Texas has provided for the exemption of a rural homestead of not more than two hundred acres of land. The changes that have been made in the organic law with respect to homesteads, have been confined exclusively to those in a town or city. At no time has one family been entitled to more than one homestead, and the distinction between that in the town and that in the country has been constantly preserved.
In the case of Ikin v. Olenick, 42 Tex. 195, this distinction was plainly stated, and whilst the convention which met shortly afterward, provided against the authority of that case in another point, there was no obliteration of the broad line between the two classes of homestead, marked in all previous constitutions, and definitely preserved in that now in force. The language of the constitution needs no construction. The lot in a town, exempt as a place of business, has no connection with the rural home. The same family is not entitled to both exemptions.
It is claimed, however, that the defendant B. H. Bassett, had the right of election between his two hundred acres in the country and his interest in the lot in controversy, and that the petition was demurrable for not tendering him this right. If such right exists, when the acts of the party have fixed to one property the homestead character and the incidental rights of the wife have become vested in it, which is at least doubtful (Rogers v. Ragland, 42 Tex. 422), it would be more properly a matter of defense. The exception urged to the petition, and sustained, raised no such issue. We conclude that the plaintiffs’ petition was good as against the defendants. H. Bassett, and the demurrer ought to have been overruled.
The validity of the deed of assignment made by B. H. Bassett is not questioned on this appeal,- nor is its efficacy to pass the interest of Jefferson Bassett, deceased, in the lot in controversy, if that interest did not vest in his widow and children as a part of his urban homestead. On the other hand, it is conceded that the interest of Jefferson Bassett, deceased, is so protected, if a partner may have a homestead right in partnership realty superior to the demands of partnership creditors.
The question has been profoundly considered and ably discussed by the most learned counts in the United States, and conclusions have been reached, all along, from one to the other radical extreme. Mr. Thompson considers the weight of authority in favor of the negative and the better reason with the affirmative of the proposition. Thompson on Homesteads, etc., sec. 216. Many of the cases which *272deny the right of a partner to claim his interest in partnership property as exempt, arise under laws which provide for setting aside to the judgment debtor so much personal property, and in these cases, the difficulty encountered and held to be insuperable, is to denude the property of the lien of the other partners. In these and other cases it is held, that each partner’s interest is encumbered by overruling equities and liens, or is contingent upon the payment of partnership debts and the settlement of partnership accounts. In some of the cases the decision is based upon, or influenced by, a technical and, it seems to us, a narrow interpretation of the words of the statutes. Id. secs. 194, 216.
It could serve no useful purpose to consider these authorities in detail, as, in our view of the law, the question must be determined in this state in reference to our own peculiar and liberal system of exemptions.
The constitution of 1876 exempts the place of business, in a town or city, of the head of a family, as well as the residence. The use of a lot as a place of business is the most authentic destination of it as a part of the homestead that can be made. The appropriation of the premises for the very purpose for which they are placed beyond the reach of creditors, is an emphatic and undeniable invocation of the. constitutional protection. When this act, the obvious effect of which is to place property on the list of exemptions and erase it from the schedule of available assets, is done by the consent of a partner, he may well be held to have relinquished his original right to charge it with future debts, or to encumber it in any way inconsistent with the new character he has permitted it to assume. And as the partners may by agreement make separate property what before belonged to' the firm (Lindley on Partnership, p. 654 et seq.), such agreement might be implied from an acquiescence by the firm in such use of partnership property by one of the members as would withdraw his interest in it from the common burdens.
The petition does not disclose whether B. H. & Jefferson Bassett were equal partners or not. We may assume that they were, and that the title held by them to the lot in controversy was in the name of Bassett & Bassett. If so, the legal title to an undivided moiety was in Jefferson Bassett. Holmes v. Moon, 7 Heisk. 506; Tidd v. Rines, 2 2 N. W. Rep. 497.
Whilst the firm was solvent, his equitable was equal to his legal estate, and he had the right to sell his moiety, .or to encumber it for his individual debts and purposes, and neither his partner nor the firm creditors, either at law or equity, could complain or prevent the *273passage of full title to Ms vendee. Parsons on Part., star p. 377; Lindley on Part., 652, and note; Treadwell v. Williams, 9 Bosw. 649; Hardy v. Mitchell, 67 Ind. 485; 55 Miss. 597; 38 Ill. 418; 52 N. Y. 146.
Whilst the firm was solvent, he thus had the right to withdraw his interest in the lot from the partnership assets, and appropriate it to his own use. And we tMnk, by the use he made of the lot by the-the consent of Ms partner, he did segregate it from the partnership property, and make it a part of Ms constitutional home, if, at any time after the adoption of the constitution of 1876, the firm of Bassett & Bassett was solvent. His interest was free when the firm was; solvent, and Ms use of that interest deprived him, his creditors and his partner, all, of the power thereafter to impose upon it any lien, except for purchase money or improvements. Inge v. Cain, Tyler Term, 1885.
The fact that Jefferson Bassett’s interest in the house and lot was undivided would not prevent his interest from being exempt, as was decided by this court in the case of Lacy v. Clements, 51 Tex. 161, and other later cases, and it has also been held that the interest of the homestead claimant need not be in the fee or freehold, (Wheatley v. Griffin, 60 Tex. 209), and it is not perceived, in view of the purpose of the exemption, why it would not extend to any estate vendible under execution. Our statute provides that property, upon which the deceased husband has given a mortgage, may be set apart to the widow in lieu of exemptions. The lien which one partner has upon the interest of the other, is certainly not greater than that of a mortgagee. But when the firm is solvent the purpose of the lien does not exist—it is like an unsatisfied mortgage when the debt it secures has been paid. And if then the exemption attaches, subsequent insolvency cannot revive extinguished liens or create new ones.
When the constitution of 1876 was adopted, a large proportion— perhaps a majority—of the class to be benefited by the enlargement of the town homestead were known to be engaged in business as partners, and it could hardly have been contemplated by the framers of the original law that a partner, who owned the entire place of business of the firm,'should hold it as exempt, while the lesser interest owned and used in the same way would not be protected.
The decisions and the statutes referred to illustrate the tendency of our laws. Bight or wrong, wise or unwise, from the beginning, neither the people in convention, nor the legislature, nor the courts have taken any backward steps. Every change has extended the *274protection, and these have been sufficiently frequent to make the progress of expansion a steady march. When the courts have hesitated or halted, they have been brought forward into line by the lawmaking power.
In the absence of definitive legislation to guide us, and in obedience to the progressive tendency adverted to, we hold, against the preponderance of authority, but with the preponderance of reason, that a partner in a solvent firm may destínate his interest in partnership realty as a part of his homestead, and thus secure it from forced sale; and, as the plaintiffs’ petition showed such use of the lot in controversy by Jefferson Bassett as would effect its destination as homestead, at a time when the petition does not show that the firm of Bassett & Bassett was insolvent, the exception of the widow and children of Jefferson Bassett to the petition was properly sustained.
If the firm was continuously insolvent from 1876 down to the death of Jefferson Bassett, whether his interest would not still be exempt is a question, the decision of which is not necessary to the disposition of this appeal, and probably, of this case, and upon which, without the aid of counsel upon the particular point, we express no opinion.
For the error already pointed out, the judgment is reversed and the cause remanded.
Reversed anb Remanded.
[Opinion delivered January 15, 1886.]