Woolfolk v. Rickets , 41 Tex. 358 ( 1874 )

Reeves, Associate Justice.

This suit xvas brought by appellees to recover fourteen acres of land near the town of Rusk, claimed as their homestead. The petition was filed in 1871. In 1863 R. J. Rickets, without being joined by his wife, sold and conveyed the land to Armstrong and Gibson. Appellants deraign title from Armstrong 'and Gibson.

It cannot be doubted that this tract of land was the homestead of appellees in 1858, and that they resided upon it as their homestead until the latter part of the year 1860, or the beginning of 1861, when they left it and removed to the Neely place, as it is called in the pleadings, only a short"distance from the land in controversy. They were occupying the Neely place at the time of Mrs. Wool-folk’s purchase, and continued to occupy that place until 1868 or 1869, when it was sold to pay the purchase money.

There has been no house on this place since 1865, and the land has been in cultivation for several years as part of appellants’ farm.

The court charged the jury in effect that a homestead is not lost by abandonment until another has been acquired. In view of the facts in evidence we are of the opinion that this was error. As this court said in Gouhenaut v. Cockrell, 20 Tex., 96: “ True, a homestead may be disrobed of its guarantees and the protection lost. The best evidence of this is that a new and permanent one has been acquired.” It is further said in the same case, “ admitting, however, as we have held, that less evidence is sufficient, and that where there is abandonment, with a fixed intention not to return, the property may be open to creditors, yet it must be undeniably clear and beyond almost the shadow, at least all reasonable ground of dispute, that there has been a total abandonment, with an intention not to. return and claim the exemption,” or, as expressed in Shepherd v. Cassiday, 20 Tex., 24, “if he did intend on leaving to abandon, this may be changed by him up to the time that he acquires a new homestead, or up to the time that some opposing right by sale has vested legally in other parties.”

The leading proposition of the charge is that a new homestead must be acquired before the old one can be lost by-abandonment, when, as has been shown, voluntary abandonment, with a fixed intention not to return, though a new homestead may not be acquired, will open the property to creditors, and we think, under like circumstances, the property would be open to purchasers also.

For error in the charge of the court the judgment is reversed and cause remanded.

Reversed and remanded.