Mart A. Woolfolk v. R. J. and Angelina Ricketts, 48 Tex. 28

Moore, Associate Justice. A jury having been waived, the only question which it is necessary for us to consider in this case, is whether the judgment is warranted by the evidence, and the principles of law applicable thereto. After a careful examination of the record, and giving full weight to every reasonable presumption which can be fairly urged in support of the conclusion of the court, we feel constrained to say, that the evidence is, in our opinion, wholly insufficient to authorize or maintain its judgment.

As was said when this case was before us on a former appeal, (41 Tex., 358,) it cannot be doubted the land sued for"was the homestead of appellees in 1858, and so continued at least until their removal from it in 1860. But we think it equally evident, from the evidence in this record, that it had been abandoned as their homestead long before the institution of this suit. And, if necessary that we shall go so far, we should have no hesitancy in saying, that it is equally evident, from the evidence in the record, that it was abandoned as their homestead before its sale by appellee, R. J. Ricketts.

As said in the case of the Houston and Great Northern Railroad Company v.

Winter, (44 Tex., 597,) the language of the Constitution exempting the homestead of a family from forced sale, and restraining the husband from selling it without the consent of the wife, does not define “its qualities, attributes, or shape,” and, as we may add, its locality, further than is expressed in the use of the words, “ homestead of a family not to exceed two hundred acres,” &c., “which seems to imply that it was something that would be known without further description.” The-evident object and purpose of this constitutional provision, as well as the inherent nature and essential requisites of a'homestead for a family, and the obvivious facts and circumstances manifest in the dedication of property to this purpose, were evidently supposed to be such as would plainly indicate the existence, as well as the particular locality and extent, of the homestead, to all persons interested in having cognizance of it.

While the provisions of the Constitution in regard to the homestead were designed for the protection and security, of families, they certainly were not intended to enable either the cunning, or reckless and indifferent, to entrap, to their injury, those using due diligence in dealing with the head of the family, or to put it into the power of such persons to make innocent parties pay the penalty of their fraud or ignorance.

Nor do I believe that there is the slightest danger that such consequences can result from the humane provisions of the Constitution in this particular, unless perverted and extended, by a strained and unwarranted construction, beyond their obvious purpose and plain import. It is the homestead of the family to which the Constitution has reference. Now, while a family may own several different places of residence, certainly there cannot be, from the very nature of the thing, or in the sense of the Constitution, but one homestead at any particular time.

And unquestionably, as a general rule, “ a man’s homestead must be his place of residence,—the place where he lives.” (22 Tex., 502.) “ The place of the house.” (44 Tex., 610.) When the family have distinctly and unequivocally removed from one home, or “mansion house,” and its adjoining land, and taken up their permanent abode and place of residence in another house, upon a different place, and where there is nothing connected with such removal and residence indicating that it is not intended to be permanent., certainly the presumption arises, if indeed the absolute conclusion is not warranted, in support of the title of one who has purchased it in good faith from the husband, that the place from which the family have gone is abandoned as their homestead.

If the object or purpose of the removal is uncertain or equivocal in its character, no doubt the cotemporaneous declarations of either the husband or wife, if not inconsistent with, but tending to explain, the real import and purpose of such removal, would be entitled to much weight, and especially if openly and publicly made, and where their subsequent conduct is in conformity with such declarations.

But, certainly, when there is an open and palpable abandonment of one home and a removal to another, and where every action of both the husband and wife, for a series of years, indicates that their removal from their old home was intended to be final and permanent, and when their conduct—if we attribute to them a definite intention—would be inconsistent with good faith and fair dealing, it would be most unreasonable to ask that the mere declarations of the wife, that she did not intend to abandon the old place as her homestead when she removed from it with her .husband, and had never subsequently designed or consented to do so, should outweigh the contrary evidence furnished by the acts and conduct of herself and husband during the period of nine or ten years while residing elsewhere.

Or if she entertained any such intention, that this would be of any ' effect, or could be regarded as sufficient to disprove the fact that in truth the old place had been abandoned as the homestead of the family; or warrant its recovery by her and her husband, notwithstanding he had sold and been fully paid for it. The evidence upon which the case was submitted to the court not warranting the judgment in favor of appellees, it is reversed, and cause remanded. Beversed and remanded.