In Grant v. Clouser, 287 S.W.3d 914, 919-922 (Tex. App.--Houston 14th Dist. 2009, no pet.), a judgment creditor executed on the judgment debtor's 50 percent interest in real property.
Although the property was not the judgment debtor's homestead, it was the homestead of Shawna Clouser, a family member of the debtor who owned a 25 percent undivided interest in the property. See id. at 917-18.
The court cited the general rules that "homestead rights may not prejudice the rights of a cotenant," and "homestead rights attaching to property interests held by a cotenant are subordinate to another cotenant's right to partition." Id. at 920.
The court then considered "whether the general rule is applicable here in light of Shawna Clouser's argument that article XVI, section 50 of the Texas Constitution precludes a partition by sale because Grant acquired his cotenant interest in the property as Ernest Clouser's judgment creditor." Id. at 921.
Citing Cleveland v. Milner, 141 Tex. 120, 170 S.W.2d 472, 473-76 (Tex. 1943), the court concluded that Shawna Clouser's homestead right was subordinate to Grant's right to partition the property. Grant, 287 S.W.3d at 921.
The court explained, "the Texas Supreme Court did not suggest in Cleveland . . . that the homestead protection embodied in article XVI, section 50 precludes a request for partition by sale by a cotenant who was the judgment creditor of someone other than the homestead-claiming cotenant." Id.