In 1951, this court stated "that a forced sale of the homestead in satisfaction of a debt of any character except as provided by the Constitution . . . is void." Cline v. Henry, 239 S.W.2d 205, 208 (Tex.Civ.App. — Dallas 1951, writ ref'd n.r.e.). The court in that case went so far as to state that a lien created by judicial decree against a homestead was void.
It has been repeatedly held in this state that the execution of an oil and gas lease does not operate as an abandonment of the homestead right of the lessor, since the transaction is entirely consistent with the homestead use. Cline v. Henry, 239 S.W.2d 205 (Tex.Civ. App. 1951). This Court believes that income producing property under a sand and gravel lease does not ipso facto make the property ineligible to be homestead.
SeeFielding , 32 S.W. at 1055 ; see also 2 TIFFANY REAL PROP. § 426 (3d ed. 2020) ("The unity of possession means unity of right of possession and not possession in fact."); Cline v. Henry , 239 S.W.2d 205, 208 (Tex. App.—Dallas 1951, writ ref'd n.r.e.) ("An essential element of cotenancy is the present right of possession."). Therefore, ANB and Rancho Viejo became cotenants upon the execution of the 1990 Cross-Conveyance.
Since unity of possession is an essential element, remaindermen are not cotenants between themselves or with the life tenant. Cline v. Henry, 239 S.W.2d 205 (Tex.Civ. App. 1951). Consequently, under the trial court's order which grants the surviving spouse an undivided one-half interest in the homestead property plus a life estate in the remaining one-half with vested remainder in the decedent's adult children and adult grandchildren, there is no one with whom the surviving spouse can share possession.
We have . . . approved of considering whether the substance is thought to be a mineral within the ordinary and natural meaning of the term. We find that coal and lignite are minerals within the ordinary meaning of the term, Webster's Third New International Dictionary (G. C. Merriam, 1961), and coal has been defined as a mineral by both statute, in the Mining Act of 1895, Tex.Rev.Civ.Stat. art. 3481 et seq. (1895), and judicial decision, Cline v. Henry, 239 S.W.2d 205 (Tex.Civ.App. 1951, writ ref'd n.r.e.). We affirm the order of the trial court.
Even if it be said that Troy had no right individually to appropriate the royalty payments to his own use it was proper for him to receive them in his capacity of independent executor. Sec. 409, Texas Probate Code; 40 Am.Jur., Payment, Sec. 26; Atlantic Ins. Co. v. Fulfs, 417 S.W.2d 302, 305 (Tex.Civ.App., Fort Worth 1967, writ ref'd n.r.e.); Youngman v. Shular, 281 S.W.2d 373, 375 (Tex.Civ.App., San Antonio 1955, affirmed 155 Tex. 437, 288 S.W.2d 495); Ramirez v. Flag Oil Corp. of Delaware, 266 S.W.2d 270 (Tex.Civ.App., San Antonio 1954, no writ); Cline v. Henry, 239 S.W.2d 205 (Tex.Civ.App., Dallas 1951, writ ref'd n.r.e.); 42 Tex.Jur.2d 72. We see no reversible error in the court's admitting the testimony of Troy that he had 'continued to act' as independent executor, and so far as he knew, the estate was still open.
; See 40 Tex.L.Rev. 163. Compare Street v. Sinclair Pipeline Co., 386 S.W.2d 350 (Tex.Civ.App.), no writ hist., with Kenny v. Texas Gulf Sulphur Co., 351 S.W.2d 612 (Tex.Civ.App.), writ ref., both decisions by the same court. The case of Cline v. Henry, 239 S.W.2d 205 (Tex.Civ.App.), writ ref., n.r.e., cited by appellant, involving a waiver of homestead rights, is unpersuasive and is not in point. None of appellant's due process or other constitutional rights have been violated in this case.