This was a suit instituted in the District Court of Montague County, on the 28th day of June, 1898, by appellee against W.R. Pierson, constable of precinct No. 4, Montague *Page 280 County, and A.J. Anderson, appellant, to enjoin the sale by said constable of a tract of land situated in the town of Bowie, in said Montague County, under an execution issued out of the Justice Court of precinct No. 1, Tarrant County, upon a judgment rendered therein in favor of A.J. Anderson against S.A. Sessions. The ground on which the sale was sought to be enjoined was that the property, consisting of about two acres, constituted part of the residence homestead of appellee and his family, and as such was exempt from such sale; that while it was detached from the dwelling of appellee, yet by reason of its cultivation, use, etc., it constituted part of the residence homestead of appellee.
"Appellant Anderson and the constable answered by general demurrer and special exception, admitting the existence of the judgment in the Justice Court mentioned, as well as the issuance and levy of the execution mentioned therefrom on the property in question, but denying that the property levied upon was exempt or constituted any part of the homestead of appellee or his family. They further averred that appellee acquired the property in question simply for purposes of speculation, and so held the same at the time of the levy in question, and not for the purpose of a homestead at all, and that the claim of appellee that the same constituted any part of his homestead was a mere pretense, a fraud, and a sham, sought to be asserted with the fraudulent intent of preventing the just seizure and subjecting of the property towards the satisfaction of his just debts.
"The case was tried by the court without a jury, and judgment was rendered perpetuating the injunction, the court below finding that the lot in question was part of the residence homestead of appellee; and from this judgment this appeal is taken.
"The following are the facts as found by the district judge, and which we adopt:
"`As to matters of fact I find that the defendant Anderson in the Justice Court of Tarrant County recovered judgment against plaintiff, and that the execution sought to be enjoined was issued upon said judgment and levied upon the premises in controversy as the property of plaintiff, as alleged in the plaintiff's petition.
"`I also find that plaintiff is, and was at the time of such levy, a married man, the head of a family consisting of himself, his wife, and three children; that with his family he has continuously resided in Bowie, Montague County, Texas, on lot 8, block 48, of Stalling's addition to Bowie, which is 70 x 140 feet, owned by him for many years last past. The premises in controversy are also situated within the corporate limits of the said city of Bowie, from 800 to 1000 yards from the lot on which plaintiff resides. He purchased the premises in controversy in January, 1895, intending when he got able to do so to build upon it and move onto it with his family, and very soon after his purchase inclosed the same with a fence and planted a portion thereof in fruit trees, and grape and blackberry vines, and the next season planted the greater portion of the remainder in such trees and vines. That during *Page 281 the year 1895 and for each year since, including the present year, he has cultivated said premises in garden vegetables exclusively for the use of himself and his family, carrying the vegetables and fruits raised thereon to the place of his residence to be eaten by his family. He has never sold any of the products raised on such premises, and no part of said premises has been used, since plaintiff purchased the same, for raising products for market, but solely for the table use of plaintiff and family, and no part of said premises has been rented out to any person. That since acquiring said premises plaintiff has not used any other piece of ground as a garden, and on said lot 8 where he resides he has no garden and no room for any.
"`The premises in controversy consist of about two acres of ground, worth about $150, and these premises, together with said lot 8 on which plaintiff resides, are worth and have always been worth less than $5000.'
"To this we add another point from the statement of facts, — that the appellee's business or occupation was that of a drummer or traveling salesman, and had been for eight years previous to the levy, and the lot in question was not claimed as his business homestead, but as part of his residence homestead, and that the two lots were situated in different parts of the city altogether, the one in controversy having been acquired several years after the establishment of his home on the other.
"Upon the facts found by him, the learned district judge filed the following conclusion of law: `From the foregoing findings of fact I conclude as a matter of law, that the premises in controversy at the time of the levy of said execution thereon constituted a part of the homestead of plaintiff and his family, being used for the purposes of a home, and hence that the same was exempt from such levy.'
"The contention of appellant is, (1) that the lot was not being used for the purposes of a home; that the products thereof, though used only by the family for their maintenance and pleasure, were not necessary to the use of the mansion or home,as a home, nor did they or the lot contribute to the proper use or enjoyment of such mansion or home, though they may have contributed to the support of the family; and (2) that the lot was not connected with or appurtenant to the residence lot, but was about half a mile distant therefrom; that its use was in no way essential to the proper occupancy, use, or enjoyment of the home by appellee or his family.
"We can not agree with appellant in his contentions. Our Constitution provides: `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 their designation as the 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 the family.' Const. of 1876, art. 16, sec. 51.
"This provision does not require that the lots shall be connected with each other, or even that they shall be near to each other, but only that they must be within the city, town, or village limits. Nor does it require *Page 282 that they should be necessary or essential to the occupancy, use, or enjoyment of the mansion house, but only that they be used for the purposes of a home.
"The case of Iken v. Olenick, 42 Tex. 196, is relied on by appellant to show that the lot must be contiguous to the residence lot. But that decision was rendered in 1875, under the Constitution of 1869, which contained no such provision relating to the use of the lots for the purposes of a home as is contained in our present Constitution of 1876. The Constitution under which that decision was rendered provided for the exemption from forced sale as the homestead of `any city, town, or village lot or lots not to exceed $5000 in value,' but that decision was made to turn on Worcester's definition of the word homestead, — `The place of the house; a mansion house with the adjoining land;' and following this definition our Supreme Court as then constituted overruled a line of decisions running back for nearly twenty years which were more liberal to the family, as they allowed as part of the homestead the lot upon which the husband carried on his business to support his family, as well as all others occupied by the family, not exceeding $2000 in value, although disconnected and remote from the residence lot. Pryor v. Stone,19 Tex. 373.
"In the case last cited, Chief Justice Hemphill, construing our Constitution of 1845, which exempted `any town or city lot or lots, in value not to exceed two thousand dollars,' said: `It allows any number of lots, not to exceed two thousand dollars, and it can not be material how many or how far or how near or remote from each other may be the lots occupied for the convenience of the family and for the prosecution of the business or employment of its head or members.'
"Thus the people of Texas understood their homestead laws for two decades, and seem to have been contented and happy, when the decision in Iken v. Olenick suddenly made its appearance in their reports, and in less than twelve months from the rendition thereof a convention of delegates from the people were met in Austin and had framed the present Constitution, in which, in our opinion, they in unmistakable terms framed a homestead law exactly in accord with Chief Justice Hemphill's decision, overruling, as it were, the decision in Iken v. Olenick and confirming that in Pryor v. Stone. So that now, whatever may have been Mr. Worcester's definition of the word homestead, the people of Texas have made a definition of their own, and have declared that the homestead in a city, town, or village shall consist of lot or lots, in whatever portion of the town situated, whether near to each other or remote, not to exceed in value $5000, provided they be used either for the purposes of a home or as a place to exercise the calling or business of the head of a family.
"Following the adoption of that Constitution came in 1881 the decision in Arto v. Maydole, 54 Tex. 247, where our Supreme Court, in construing the clause defining an urban homestead, said: `The question is not whether any portion of this adjoining block may have been *Page 283 a necessity or a mere convenience to the enjoyment of the homestead, but whether in fact it was a part of the homestead. If it was, the fact that it may have been used as an approach to the mansion or for the purpose of ornamentation or pleasure grounds only would not defeat it of the homestead protection.'
"In 1882 the case of Brooks v. Chatham, 57 Tex. 33, was decided, where the clause of the Constitution defining the rural homestead was construed. That clause provides that the country homestead `shall consist of not more than 200 acres of land, which may be in one or more parcels, with the improvements thereon,' and the court held that the clause immediately following the definition of an urban homestead, to wit, `provided the same shall be used for the purposes of a home,' applied to the parcels of land claimed as a rural homestead the same as it did to the lot or lots claimed as a city homestead; and it was further said by the distinguished jurist who wrote that opinion that the parcel claimed might be situated eight or ten miles from the home place, if its use was such as to designate it as part of the home.
"In 1883 the same court held in Medlenka v. Downing, 59 Tex. 40 [59 Tex. 40], that the use of a town or city lot for a garden `fixed upon it the homestead character;' and this too in a case where the lot was separated by a fence and the homestead had been designated in writing for the purpose of securing a loan, excluding the garden, upon which, with other property, the mortgage was given.
"In 1884 the same court, in the case of Jacobs v. Hawkins,63 Tex. 4, said: `If there be an actual use of property as for a homestead purpose, although it be detached from the lot on which the residence or mansion house stands, then it is not necessary that some open assertion or claim to it as part of the homestead be made, otherwise than as such claim is evidenced by the use.'
"Following this decision, in the year 1885 the case of Axer v. Bassett, 63 Tex. 548, was decided, where the two-acre lot claimed as part of the urban homestead was 100 yards from the residence lot, but was used for a rye and barley patch and to pasture cows and horses on, and it was held to be part of the homestead because used for the purposes of the home.
"We think that the use of a lot for the purpose of raising garden vegetables, berries, and fruits for the family table is one of the uses to which home lots are usually devoted. It is a garden, as the term is understood among Texans, and a garden in a Texas town or village is considered as much a part of the home as the front yard or the back yard or the stables and horse lot, and the writers of our Constitution must have so understood it and intended it. Waggener v. Haskell, 35 S.W. Rep., 1. If the lot adjoined the residence lot, used as it is, though divided from it by a high wall or fence, would anyone contend that it was not a part of the homestead? Certainly not. And why would it be? Simply because it was used for the purposes of a home, and not because it was contiguous. *Page 284
"Then if a garden is a home use, — one that would protect it if adjoining the residence lot, as held in the Medlenka case, — we can see no reason why the same use will not protect it though situated across the street, as in the Jacobs-Hawkins case, or across ten streets, or anywhere else in the town, city, or village. It might not be as convenient a homestead, thus scattered from suburb to suburb, but probably the best the poor drummer would be able to own. He might not be able to own the lot adjoining his residence to use for a garden, because of its great value for building purposes, but could buy one in the suburbs of the town larger and perhaps better adapted for a garden, and thus add a few comforts to his home. If play grounds and shady parks with graveled walks used only for pleasure or ornamentation are protected, because used for the purposes of a home, we think that a little garden spot, although in a distant suburb of the town, would not be an improper or an unreasonable addition to the homestead, where it is used for the purpose of supplying the home table with the necessaries and comforts of life; — for the children of the poor must eat, though they may not have much time to play.
"It is contended also that because when he bought the lot he intended to build a residence on it when he got able, and has since only used it as a garden, this would render it liable to execution. But we are also constrained to differ from this view. Both are homestead purposes, and shifting the uses of the lot from one homestead purpose to another does not constitute an abandonment nor deprive the lot of its homestead character. See Axer v. Bassett, supra.
"Finding no error in the judgment, it is affirmed."