At the time Garrison attempted to appropriate the land in controversy, the law gave to the head of the family the right to acquire by pre-emption a homestead, not to exceed qne hundred and sixty acres, out of the unappropriated public domain, provided he owned no other homestead.
From the record it appears that at the time Garrison settled upon the land in controversy, his wife owned in her own right another tract of land, upon which they had resided for several years; he rented that and moved upon the land in controversy.
The only error complained of by Garrison is supposed to be contained in that portion of the charge where the jury are told that if his wife owned in her separate right a tract of land upon which he had resided with his family, cultivating, using and occupying it as his place of residence, then such land was his homestead, and that he could not acquire another upon the public domain by pre-emption.
Whether the homestead be the community property of the husband and wife, or the separate property of either, the exemption is the same, and it is the homestead of the family in the contemplation of the pre-emption laws as well as the constitution.
These pre-emption laws have a two-fold object: one to secure the settlement of the country by encouraging emigration; the other, and prime object, is to secure homes to the homeless, and not to those who are already provided for in that particular. Gambrell v. Steele, 55 Tex., 582.
Our conclusion is that the judgment ought to be affirmed.
Affirmed,
[Opinion delivered October 25, 1882.]