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more valuable, and to sell them, and have them moved off the place, if a purchaser could be found; also that they were offered for sale to be removed, and that the foundation was of a character so that they could be easily moved. The claim of homestead was sustained.
Harle v. Richards, 78 Tex. 82, 14 S. W. 257:
Harle built a house on the east half of the block, which he and his family occupied as a residence, and also carried on a hotel business therein. Soon after he built a storehouse on a lot in the saine block, and opened a grocery business. The buildings were so occupied and used for several years, the residence being used as a hotel under the management of Mrs. Harle while her husband conducted the grocery business in the storehouse, when the family moved from the residence into the back end of the storehouse, and the residence was rented as a hotel. The grocery business was closed, and Mrs. Harle opened a millinery business in the storehouse. This was the status at the death of Harle. Thereafter the widow went to live with her son, closed out her millinery business, and rented the storehouse.
The court holds that
"At the time E. Harle occupied the residence or hotel property with his family as their home, and carried on a business in the storehouse, both pieces of property were homestead.
We think it would be unreasonable to hold that the facts of the removal of the family from the residence to the back end of the storehouse and the temporary renting of the residence for hotel purposes constituted an abandonment of the residence as a homestead.
The property having acquired the character of homestead property,
the burden is on him who seeks to subject it to the liabilities of property not homestead to show that it has been abandoned by those to whom it was protected as a homestead.”
Storrie v. Woessner (Tex. Civ. App.) 47 S. W. 838:
The homestead consisted of a residence, a barn, and two small tenements erected while the owner occupied the property under lease before purchase. In one of these he had some goods at the time of the trial, and the other was rented. He testified that they were not intended as permanent improvements, and that he intended, as soon as he could, to remove them and extend his business over the site. It was held that the use to which these smaller houses were put did not evidence a dedication of portions of the lot to other than homestead purposes.
There would appear to be no question that the rear room of the second story was, at all times, used for a homestead purpose, and that there was, at least as to that part of the building, no abandonment.
Was the Business Homestead Abandoned ?- The business, as developed, included a cotton buying and private banking business. When the “bank building” was erected these parts of the business were conducted on the lower floor. The bank was subsequently national-ized, but was under control of the bankrupt, and was conducted by him and his sons as before, and the cotton business was conducted as before. Further facts with reference to the use of the property as a business homestead are indicated by the following testimony:
C. L. Eckhardt testified:
(256 F.) | any and everywhere; later on in the cotton department. It rekeeping of books. Before the bank was built we kept them in the fter the bank was built we kept them in the back of the bank. ame way after the bank was converted into a national bank. The still used for Ç. Eckhardt & Sons in the cotton business. The valuables of C. Eckhardt & Sons were kept in that bank. s a common wall between the bank building and the warehouse. o openings in the wall. I think my father conducted a bank in ng 4 or 6 years before he nationalized. C. Eckhardt & Sons coninking business since 1868; then they moved from the store to the ng when it was built. When the bank was nationalized, my father building to them; that is, only the lower floor. I had my cotton here just as before. I continued this until C. Eckhardt & Sons Ss. There was only a small office in the back of the big rock build
Green and Welhausen got controlling interest in the bank ears ago, then it was only a couple of years and they moved, Che national bank rented and paid rent for the whole lower floor, ed in there until they moved out, just the same as I did before. Ty desk was there until the bank moved out. I continued to do the siness there until we didn't handle any more cotton.
I building was leased to the bank always for a year, and went from
I think the bank moved out of the building about 12 ths before my father quit business. There were some plows in the r of that building, and some sewing machines and a whole lot of I helped put there myself. We used it as a storeroom after they
ther conducted a banking business, and he conducted the cotton in the lower floor.
* Before and after the bank was natione conducted the cotton business in the back part of the bank. That understanding; that is, from the vault back.
The general of my father was kept open up to the time of the filing of the petiankruptcy.
After the bank moved, my father used the back the bank building for a storeroom and as his private office. Plows, 'S, sewing machines were stored there.
Since the building ank building there has not been a time when my father did not have of the back end of that building.
The private bank was d in that building up to 1902, if I remember right. Then it became al bank. Then the national bank rented a part of the lower floor. lerstanding was that my father was to use the back part of the bank 5.
* At the time of the levy) there was merchandise stored ack part of the bank building. I guess the clerks who worked for my put them there. I put things in there myself. The shoes were upvhen the levy was made.”
imony of Richard Eckhardt:
The warehouses in the back of the main buildre in bad shape. It was not a fit place to store such things as sewing les and soap and such stuff as was stored in the bank building. The of the business done by C. Eckhardt & Sons during 1915, to the best of dgment, was $40,000 or $50,000.
We exhibited some of the in the bank building for sale. We had ties, hats, shoes, shirts, etc. were upstairs and in the back end of the lower floor."
H. Dunn testified: im the trustee in bankruptcy.
In taking the inventory I found goods in the bank building, back of the vault.” 256 F.-21
"I let the Eckhardts have some money, and agreed to let them pay it in rents.
That was about September 4, 1914. Since then I have been occupying the room and taking out tue money in rent.
When I first rented the building, I paid rent from month to month. I had no lease."
 The Law as to Abandonment of Business Homesteads.—The Texas constitutional provision defining and exempting the homestead (article 16, § 51), specifically provides that no temporary renting of the homestead shall constitute an abandonment. The liberal construction given to this provision, and the limited use which will affix or retain the business homestead character, are indicated by cases of which the following are typical :
Billings v. Matlage, 36 Tex. Civ. App. 619, 82 S. W. 805:
Matlage was head of a family, and had a residence home. He also owned the lot in question, upon which he had erected a one-story frame building, 30 feet by 60. He was in the mercantile business and used the building as a store, until, by reason of reverses, he was compelled to suspend, and turned the stock over to creditors. Shortly after he began, in the same building, the business of a retail grocer and commission merchant, and continued until stress of circumstances again forced him to suspend. He then executed a written lease, whereby the building was let for one year, the lessees to use it in conducting a banking business. Under the lease the shelving was to be stored in the rear part of the building, and the lessees were, upon the expiration of the lease, to restore it to its former position, By oral agreement, Matlage reserved, in the rear of the building, space for his safe and books, and thereafter occupied it in an effort to con duct a business of real estate, loans, and collections. At the expiration of the lease, he leased to the banking firm the western half of the building, reserving the eastern half, in which he continued his collection, real estate, etc., business, reserving the right to terminate the lease upon 60 days' notice. He intended to resume his mercantile business when conditions again became normal. On several occasions, when business was very dull, he left his place and engaged in manual labor for his livelihood. The court said:
“We are of the opinion the facts show the rentals were only temporary. and failed to establish abandonment."
The appellant complains of the failure of the court to submit the issue of the abandonment of the western half of the building. The court says:
"The building was an entirety, and homestead occupancy sufficient to ex. empt any part of it exempted the whole. The case is distinguishable from such as Hargadine's Case, in 71 Tex. 482, 9 S. W. 475, in which the owner of a homestead build a business building on a lot which was a part of his home stead, and which adjoined the building occupied by himself. The new build. ing was constructed for renting purposes, and it was properly held to have the effect to sever from the exemption the lot upon whirh it rested. The case of Hinze v. Moody (13 Tex. Civ. App. 193] 35 S. W. 832, is in point."
(256 F.) 13 Tex. Civ. App. 193, 35 S. W. 833: engaged in business as a grocer in a brick storelot separated from his residence. He failed, and ty to a trustee for creditors. Before the failure r floors were connected by an elevator, and both ring on his business. After his failure, he coma commission merchant, etc., and he kept his office hich was also for a while occupied by his trustee ods. Soon after the failure in 1889, he closed the p the second story into rooms for bedrooms and ited out. In January, 1892, a temporary partition lower floor, 60 feet back from the front, and the t for a saloon. Later, another concern occupied the xcept 12 by 15 feet, holding under a lease for three ut the partition, making the whole lower story one eserved and kept as his office 12 by 15 feet of the It was separated by a railing 3 feet high, upon netting, 18 inches high. He kept his safe, desk, office, and it was necessary to his business. There nor doors in the wall included in the office, and his rough the room occupied by his tenant. ed," says the court, “that the extent of appellant's claim luch of the lot and the building above it as would be terior lines of the railings, and the lines of the lot on the ts do not show such a separation and abandonment of the Iding as to indicate certainly what portion of it had been nt had the right of ingress and egress to and from the
office, through any of the doors, and over any part of the d his customers. It will not do to say that he could cut dow on the alley, or a door to the street, for the answer es not done so. He has an open office in the rented builda and access to it for himself and all such persons as may him."
ase the renting was of no more permanent character eviewed, and the retained use was quite as important. nconsistent Use of Part of Building.--The effect oi building for purposes inconsistent with the homestead,
is used for homestead purposes, has been indicated cases of Billings v. Matlage, 36 Tex. Civ. App. 619, | Hinzie v. Moody, 13 Tex. Civ. App. 193, 35 S. W. 5 case is Forsgard v. Ford, 87 Tex. 185, 27 S. W. 57,
The Supreme Court details the finding of the Court as follows: ound
with reference to the half of lot 4 are lot 4 fronted on Bridge street 25 feet, with a two-story ring the entire front and running back 85 feet. Under the
was a cellar. The first floor above the cellar was - rooms, by running a partition across the house 25 feet 1 another partition dividing the front into two rooms frontThe Court of Civil Appeals finds that the entire lot under oted as homestead by reason of its use; that the rear room nd the second story are likewise exempted, but that the two e first floor are not exempted-they having been abandoned
as a homestead and rented out for other uses. The question presented is:
(article 16, § 51) defines an urban homestead in this language: "The homestead in a city, town, or village, shall consist of lot or lots not to exceed in value $5,000 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 of business to exercise the calling or business of the head of the family: Provided, also, that any temporary renting of the homestead shall not change the character of the same when no other homestead has been acquired.' By this provision of the Constitution exemption is placed upon the lots and not upon the improvements. This was emphasized by the further provision that the value of the improvements shall not be included in determining the right. The use of the lot or lots impresses upon the land the homestead character. Whatever is so attached to the land as to become a part of it must partake of the character of the land; and if the land is subject to sale, the improvements upon it will be subject. If, however, the land cannot be sold, neither can the structures built upon it as permanent buildings, adapted to its use and intended by the owner for such purposes. It would not be contended, if this lot were not exempt from forced sale, that the sheriff could seize and sell the two rooms under these executions, nor would it be asserted that a sale of the lot would not carry the whole house. If the house, as a whole, be a part of the realty, as it evidently is, how can it be said that a portion of the house is not a part of the land; and if it be a part of the lot, under what rule of procedure can it be separated from the lot for the purposes of seizure and sale under execution?"
Bente v. Sullivan, 52 Tex. Civ. App. 454, 115 S. W. 350:
It was claimed that a part of the hotel building, 20 by 30 feet, had been abandoned as a part of the business or residence homestead. The court held that this portion of the building could not be separated or partitioned or divided from the main building, it being a part of the same structure.
The conclusions reached are:
1. The property was homestead before the construction of the bank building.
2. The construction of the bank building was not, in itself, an abandonment of the homestead.
3. The upper rear room was never used for a purpose inconsistent with the residence homestead use.
4. The first use of the lower floor of the bank building was for the conduct of a part of the established business, and constituted, with the adjoining houses, the place of the business.
. 5. The rentings of the lower floor are not to be differentiated in principle from those considered in the cases reviewed, in which the homestead claim was sustained.
6. The owner at all times conducted a part of his business on the lower floor; the use being of a character which, in the cases reviewed, was held to preserve the homestead character.
7. The renting of the upper front room was from month to month, and cannot, under the decisions, be held to have divested the homestead character,