#### D. H. SCOTT vs. J. L. & M. A. DYER.

SUPREME COURT,

TYLER TERM, 1883.

*Homestead*— Abandonment *of.*Mere absenc.e from the premises, nor anything short of a total relinquishment or abandonment with the intention not to claim it as a homestead, will not subject it to forced sale.

Jiote a state of facts *held*not to operate as an abandonment.

Error from Lamar County.

*Sale Scott*for plaintiff in error.

No counsel for defendants in error.

STATEMENT.

This was a suit brought by D. H. Scott to recover, from J. L. and M. A. Dyer, in an action of trespass to try title, a lot of land in the town of Paris, claiming it under his purchase at sheriff’s sale under a judgment and execution, more particularly described hereafter, in favor of the plaintiff against the defendants as husband and wife.

The defense was that the lot was the homestead of defendants.

The cause was submitted to the judge without a ' jury, who found his conclusion of facts and of law in writing, and upon which he rendered judgment for the defendants, to which the plaintiff excepted, and prosecutes this writ of error, assigning as ground of error that the court erred in holding that the property in controversy was the homestead of defendants, and not subject to plaintiff’s judgment and execution.

The district judge trying this case found the law gaud facts in writing as follows, viz : ‘"This cause having been submitted to me upon the pleadings and the evidence, and the plaintiff having requested that I find the issues of fact separately from the conclusions *570of la.w, I find that the following are the facts established by the evidence, viz : That’ on the 20fch day of April, A. D. 1875, plaintiff recovered judgment in the district e&urt of Lamar county, Texas, against deffendants as husband and wife, and against the separate property of M. A. Dyer, defendant, for the sum of $224.66, with an order for execution generally upon the judgment, as well gs the said wife’s separate property; that an exeeution generally against the property of defendants in the judgment-, and against the said wife’s separate property, issued upon said judgment on the loth day of September, 1875, and was, 15th day of September, 1875, levied upon the lot of land described in plaintiff’s petition, and that in pursuance of such levy, euid lot was on the 1st Tuesday of October, 1875, sold at the court houre door of Lamar county, by the sheriff of said county, and that plaintiff became purchaser at such sale at the sum of $25.00, which was credited on the execution, and the said sheriff therefore made him a deed to the same ; that defendant, M. A. Dyer, was the owner of the lot in controversy at the date of the levy and of the sale, as her separate property ; that it was part of a lot of about four acres which was occupied and used as a family residence by defendants, as their homestead, in the year 1873, and before that time ; that during said year they sold all of said lot exoept the part in controversy ; that the portion . so sold embraced the dwelling house and all other improvements, except part of an orchard which was on the land in controversy, and was 'enclosed with the other improvements. That defendants lived a year after the sale with a son of the wife, in the country, and returned to Paris, where they have lived ever since, but never acquired any other homestead ; that when they sold part of the lot, they reserved the part in controversy as a homestead, intending to improve it for that purpose ; that the intention continued to exist until the date of the levy and of the sale, but the land in controversy, though occasionally cultivated, was never occupied as a residence by defendants after the sale of the other part of the lot ; that up to the date of levy no improvemente or preparations for the same had been made upon the premises, but that, on the contrary, the enclosure had been partially destroyed at'that date, and the premises left unenclosed on one side.

The foregoing being the facts of the case, I am of opinion that the lot in controversy, having been part ©f the homestead of defend*571amts, and having been reserved at the oale of the other part of their residence íor the purpose of making it a family residence, and that this purpose never having been abahdoned, nor another homestead acquired, I am of opinion that it continued their homestead until the date of the sheriff’s sale; that such sale, therefore, passed no title, and that judgment ought, therefore, to be given for defendants.

It is, therefore, adjudged accordingly.”

Opinion by

Walker, P. J.

There being no statement of facts in the record, the error assigned presents the question whether the facts stated in the finding of the eourt warranted the legal conclusions deduced from them by the judgment.

The premises, in their entirety, previous to the sale and conveyance bf that portion of the four acre lot described in the finding of the judge, constituted, it is conceded, the homestead of the defendants.

It cannot be doubted that the defendants had the right to limit the extent of their homestead, by conveying away a part and reserving the remainder of what constituted the original homestead premises. This, according to~the finding^ they attempted to accomplish, Theydid “ reserve as a homestead” the unsold portion, and was then fully impressed with the essential characteristics of an actual subsisting homestead, wanting^in nothing save' the requisite shelter for habitation — such as a house or cabin. •

Although it is said that “a homestead necessarily includes the of a house for residence or mansion house,” (Franklin vs. Coffee, 18 Tex. 416) and also that the intent to appropriate a homestead be evidenced by some unmistakable acts showing an intention to carry into execution such intent, Or some sufficient excuse should be shown for the absence of such acts where the homestead right is asserted against a purchaser of the land before actual occupation of it as a homestead,Anderson vs. McKay, 30 Tex. 280; Moreland vs. Barnhart, 44 Tex. 275,it is to be observed that these maxims and rules have been invoked and applied in cases where the homestead claimant had not by actual domiciliation on the land, or by other acts evidencing clearly and unmistakably his intention to establish his homestead on the land, fixed beyond question a homestead right.

The case of Franklin vs. Coffee was one of that kind, and there it was said: “nor would it be necessary to secure the exemption that a house should be built or improvements made. But there *572must be a preparation to improve; and this must be of such a character and to such an axtent^as_to manifest beyond doubt the intention to complete the improvements and ‘ reside upon the place as a home.”

In all of this class of cases it was a question whether a homestead character had at any time been impressed upon the land, and the existence or absence of houses, improvements, or other palpable *indicia*of absolute intention, designation and appropriation of the land for homestead purposes, because the subjects of discussion as affording proper tests to determine the status of the property in controversy ? But where, as in this case, the entire premises had but recently, comparatively, been the homestead of the defendants, whether the portion of it which was reserved in the sale of the improved part, continued to maintain the homestead quality, would not, we think, depend upon the test to which we have just referred; but rather upon the ascertainment of the intention of the defendants to continue to use and occupy it as a homestead. If they meant to abandon, and did abandon it as such, then, of course, it ceased to be their homestead. Mere absence from the premises, nor anything short of a total relinquishment or abandonment, with the intention of~notto again claim it as a homestead, will not subject it to forced sale.

Austin vs. Towns, 10 Tex. 24.

The defendants did not occupy it as a residence after the sale of a part of it, though it was occasionally used by defendants in the way of cultivation.

They never acquired any other place for a homestead, and they _had not ceased, *to*occupy the lot in controversy as a homestead more than about a year and eis~ht months, one year of which period they had resided in the country with a son of Mrs. Dyer, the remaining time they had lived in the town of'Paris.

These facts are not inconsistent with an intention to resume at their convenience the land in controversy as their dwelling place. The finding of the judge, upon what must be taken, in the aosenpe of a statement of facts, to be full and sufficient evidence “that when they sold part of the lot, they reserved the part in controversy as a homestead, intending to improve it for that purpose, and that that, intention continued to exist until the date of the levy and of the sale,” negatives the idea of abandonment, and under all the circum*573stances and facts of the case we are of the opinion that the land in controversy constituted the homestead of ‘the defendants and was exemptTrcim forced sale.

An old homestead will not be considered abandoned before the acquisition of a new one, except upon clear and conclusive proof of abandonment with an intention not to return.

Shepherd vs. Cassidy, 20 Tex. 24; Gouhenant vs. Cockrell, 20 Tex. 96.

The finding of the judge above quoted sets at rest any question of abandonment, and we conclude, with him, that the judgment of the court ought to be for the defendants, and, therefore, that the judgment of the court below ought to be affirmed.

October 19, 1883.

Report of Commissioners of Appeals examined, their opinion adopted and the judgment affirmed.

WILLIE, C. J.