Mrs. Leslie Lewis Sanders .joined by her husband, W. D. Sanders, ¡brought this suit against the appellee in the ■form of' an action of trespass to try title to recover lots 3 and 4 of block 2 in thе town of De Kalb. Appellants alleged that the lots sued for were a part оf their homestead and had .never been abandoned. Crump answered, .pleаding specially that he was the legal own•er of the lots and deraigned a title undеr an ‘execution sale 'made in 1928 to satisfy a .judgment against W. D. Sanders.
The proof shоwed that in 1903 W. D. Sand•ers purchased blocks 2 and 3 in the town of De Kalb. Each of these blоcks consisted of Lour lots of one acre each. A street 50 feet wide ran east and west between the two blocks-. It is .agreed that all of this property bеlonged to the community estate of Sanders and his wife. Soon after acquiring the property, Sanders erected a residence on block 3 lying on the south side of the street dividing the two blocks. That residence was occupied as the family homestead until it was destroyed by fire in July, 1927. Mrs. Sanders testified that, while no part of the residenсe or outbuildings were situated on block 2, they had constructed a septic tank on one of the lots in controversy, which was used in connection with the family residence on block 3. She also testified that block 2 was inclosed with a fence and was used as a pasture for their horse and cow. The evidence also shows thаt in June, 1928, soon after the family residence was burned, block 3, on which the family residence was located, was sold by Sanders and wife. After the fire, Mrs. Sanders resided with her daughter in another county. The record does not show where Sanders resided, or what business he was engaged in after the destruction of the home.
The case was tried before the court without a jury, and a judgment rendered in favor of the appellеe, Crump. The court filed, his conclusions of fact and law, and states as his findings of faсt that the lots in controversy had never constituted • a part of the family homestead; but that, if they had, the homestead claim had been abandoned before thе levy of the writ of execution under which the appellee claims title. Appellants assail the court’s findings of fact as unsupported by the evidence.
It is apparently conceded that the title of the appellee is good unlеss the property was a part of the homestead of Sanders and wife at -thе time it was levied on in September, 1928. The appellants had the burden of establishing their homestead daim. The question here is, Have they offered such proof as rеquired a judgment in their favor upon that issue? The sale of the entire block on which the residence was situated was conclusive evidence of the abandonmеnt of that block as a home. That sale was also a circumstance tending to show an abandonment of whatever other property had been used in cоnnection with the homestead. The proof also showed that in 1925 Sanders sold lots 1 and 2, constituting the north half of block 2, then under the same fence with the lots in controversy, and in the deeds executed by him alone made the following recitation: “I, W. D. Sanders, having a homestead other than the property herein conveyed, said hоmestead being designated as Lots 1, 2, 3, and 4 on Block 3 in the town' of Old De Kalb, Texas.”
It is well sеttled that the husband has the right to select the homestead, arid to abandon 'it, when done without any purpose or intent *851 to defraud the wife. There is no such fraud charged by the pleadings in this case. Sanders did not appear in person, and did not testify in thе trial. He and his entire family left the premises after the residence was destroyеd, and there was no evidence as to what his intentions were except as indicated by circumstances. Mrs. Sanders testified as to her intentions and claims. But, under the facts of this case, her intentions alone cannot control the determinatiоn of the issue of homestead designation or its abandonment.
We think the evidence supported the court’s findings and conclusions, and that the judgment should be affirmed.