Aultman Co. v. Allen and Wife ( 1896 )

KEY, Associate Justice.

This is an action of trespass to try title involving adverse claims to a tract of land. Appellant claims through a sale made under an execution against W. W. Allen.

Appellees claim that at the time the levy and sale were made the land was their homestead; and the court below so found and for that reason rendered judgment for them.

Appellant assigns error on this ruling, the contention being that all homestead rights in the land had been abandoned.

The property in question is a farm in Lampasas county. It became appellees’ homestead in 1882; and they continued to occupy and use it as such until 1890, when they moved to the town of Lampasas, and occupied a house and lot owned by them in said town until after appellant had the farm levied on and sold in 1893, though the evidence-shows that in June, before the levy was made in August, appellees were preparing to return to the farm and had two of their minor sons plowing; the field preparatory to sowing fall wheat. Among other things, the trial court found as follows:

Delivered January 15, 1896.

“Eighth: I find that in 1890, when defendant left the land in dispute and moved iipon said property in the city of Lampasas, that the purpose of such removal was to educate his children; that he intended to return to the land in dispute within a period of about three years from the time he so left it; that he at no time intended to permanently abandon the property, but on the contrary, during all the time he was absent from the property he intended to return to it after sending his children to school for said period of three years.”

This finding is amply supported by testimony; and, in our opinion, is conclusive of the question of homestead. There being no intention to permanently abandon this property as a homestead, but on the contrary, the intention being to return and use it as such, in about three years, there was no abandonment of the homestead rights therein, although in the meantime appellees occupied, as a residence or temporary home, other property belonging to them. And this holding does not result in allowing them two homesteads. The farm being the homestead, the town residence was not homestead.

It was proper to allow appellees to testify that when they left the land they intended to return to it. Hor did the court err in overruling the motion for a new trial. Conceding proper diligence to secure the evidence of F. J. Harris, his testimony, to the effect that W. W. Allen, while living in town, offered to sell the farm, would not probably change the result upon another trial. Men often try to sell their homesteads; and such an offer does not change the fact of homestead.

We adopt the conclusions of fact and law filed by the court below, and affirm the judgment.

Affirmed.

Writ of error refused.