O. W. Crockett v. Jno. D. Templeton, 65 Tex. 134

Robertson, Associate Justice. Prior to 1870 widower O. W. Crockett and widow Jeffries were united in marriage. In February, 1870, they purchased a tract of eighty-two acres of land in Navarro county, and from that time until 1878 they occupied it as a homestead. In 1878 they agreed to separate and divide the land between them. Mutual friends were called upon to make the proper division, and they allotted to O. W. Crockett out of the eighty-two acre tract the 541 acres here in controversy. The rest of the tract, upon which were all the houses, was given to Mrs.

Crockett, and upon it she and her children by her first marriage have ever since resided. The marriage relation between O. W. Crockett and his wife still subsists, though the former, immediately upon the agreement to separate, went with the children of his first marriage to Ellis county, and lived there upon rented lands for five years, when he returned to Navarro, but not to the land now in controversy. To divest his wife of any interest in his part of the land, he and she joined in a deed to it to W. F. Kempner. Kempner some two years afterward reconveyed the land to Crockett.

That Kempner’s only interest was as trustee of the legal title for Crockett’s benefit does not fairly admit of dispute. Crockett so swears, and Ransom, who was allowed to testify to a different understanding, states that Kempner all the while paid rents to Crockett. The findings of the court below do not distinctly contravene this view of the conveyance to Kempner. In May, 1882, the plaintiff, appellee, bought the land at execution sale under a judgment against Crockett, and brought trespass to try title, and recovered a judgment for it in the court below, and from that judgment Crockett appeals.

The whole issue is whether at the time of the levy and sale under which appellee claims the land was part of appellant’s homestead. That it was part of the homestead of Crockett and wife, prior to their separation, admits of no doubt. Mrs. Crockett continued to reside upon the other part of the eighty-two acre tract, and by the deed to Kempner it was her purpose to divest herself of all claim whatsoever to the land in controversy.

She has abandoned her homestead right to a part of their homestead, but in that part her husband has retained the equitable ownership, with the purpose of using it as a home whenever he is in a condition to build upon it. Since the division he has never lived with his wife upon her part of the tract, but he has acquired no other home. Without her consent he can mantle no other habitation with homestead protections. Until he and she unite in abandoning the part she occupies, that is their homestead. He doubtless no longer asserts any interest in her part of the land, but still it cannot be taken for his debts.

Why may his part, in which he still asserts the homestead interest, be taken? She can no more abandon his to his creditors than he can her’s. They have not been divorced. They are not entitled to two homesteads. This eighty-two acre tract was their homestead, and the husband has never abandoned the homestead interest in the part appellee attempted to sell. But suppose the

part in controversy had never been owned by Crockett until Kempner conveyed it to him—it lies adjacent to the part that was the homestead of Crockett and wife, and which, by the wife’s occupancy, has continued to be the homestead' of the family. In such case the part purchased, by the mere intent of the purchaser without overt act, becomes part of the constitutional home. Notice of the intent is given by the use made of the part to which the new purchase is adjacent.

The owner of an one hundred acre farm is not required to enclose or build upon the fifty acres of woodland just outside his fence, which he has bought, to give notice that it is an addition to his home. The situation is sufficient to excite inquiry, and that would discover the intent.

Appellee might have been an innocent purchaser if he had bought from Kempner whilst the legal title and possession were with him, but, buying under an execution against Crockett, he cannot, on the principles stated, be innocent of Crockett’s purpose in acquiring the title from Kempner to make the land in controversy a part of his home. That such was his purpose Crockett declared to his neighbors and testified on the stand. The 541 acres of land were all in cultivation, but the land had no house on it.

Crockett was too poor to build, but he used the rents in the support of himself and his four children— a grown son, a son 16 years old, a widowed and an unmarried daughter. He acquired no other land, nor attempted, so far as the record discloses, to dispose of this. These circumstances rather indicate than disprove the purpose he expressed. There is nothing in the case of Edmundson v. Blessing, 42 Tex., 596, and 49 Tex., 333, in conflict with these views. There the deed contained recitals, which gave to it the legal effect of an abandonment of the homestead it conveyed.

In the deed made to Kempner there was nothing inconsistent with Crockett’s right and purpose to use the land under his equitable ownership as his homestead. In Edmundson v. Blessing, the entire homestead being abandoned, it could be redestinated only by a new intent manifested by acts. In this case the homestead continued on Mrs. Crockett’s part, and the acquisition of a contiguous tract (the whole not exceeding 200 acres) itself sufficiently manifests the intent thus to extend the homestead, if the intent in fact exists.

We conclude that the land in controversy was exempt from forced sale at the date of appellees purchase. The judgment of the court below is reversed, and here rendered for appellant that appellee take nothing by his suit, and that appellant go hence without day and recover of appellee all the costs in this court and in the court below. Beversed and Bendered. [Opinion delivered November 10, 1885.]