Shepherd v. Cassiday

| Tex. | Jul 1, 1857

Hemphill, Ch. J.

The object of the present suit is to recover a lot of land in the town of Bastrop, claimed by the plaintiff, Margaret Cassiday, as her homestead; and damages for its detention. The defendant, James W. Shepherd, claims that the plaintiff had abandoned her homestead, and that he purchased the lot at Sheriff’s sale.

The plaintiff left Bastrop on or about April, 1855, and the lot was sold in October of the same year, the plaintiff in the mean time living with her children in Austin, where she has ever since continued to live ; but has acquired no homestead. There was proof of declarations of her intentions as to retaining or abandoning her homestead. The judgment was for the plaintiff, and the defendant appealed.

The question of abandonment of homestead, or by what acts and circumstances a person who has a homestead forfeits his right to the exemption before or without acquiring a new homestead, presents great difficulty in its adjudication. The rules in relation to domicil, the abandonment of the old and the acquisition of a new domicil, are not (if it be admitted that mere abandonment will forfeit the homestead right) altogether applicable. For it is a maxim that every man must have a domicil somewhere, and also that he can have but one; that his existing domicil continues until he can acquire another; and that by acquiring a new domicil he relinquishes his former one. The more correct principle, says Judge Story, is, that the original domicil is not gone until a new one is actually acquired facto et animo. (Story, Conflict of Laws, § 47; 10 Pick. 77 ; Thorndike v. City of Boston, 1 Met. 242" court="Ky. Ct. App." date_filed="1858-09-23" href="https://app.midpage.ai/document/hancock-v-johnson-7383301?utm_source=webapp" opinion_id="7383301">1 Met. 242; Sears v. City of Boston, Id. 250.)

If we admit that an old homestead may, in opposition to this rule with regard to the change of domicil, be abandoned before the acquisition of a new one, it can only be on the most clear and conclusive facts of abandonment of the homestead, with an intention not to return. An old domicil cannot be forfeited' without conclusive proof that a new one has been acquired. If an old homestead can be lost, without proof that a new one has been gained, certainly the circumstances to show abandonment must be most clear and decisive.

We do not intend to assert'the proposition, that the old homestead remains until a new one is gained. This would perhaps too much embarrass and obscure the condition and rights of property, to receive judicial sanction; there being no law or statute to that effect. But while this is admitted, we must remember the wise and beneficent purposes of the homestead exemption ; that it was intended to secure the peace, repose, independence, and subsistence of citizens and families; that it was placed beyond the reach of creditors, an asylum upon which they might gaze, but which they could neither enter nor disturb ; a right so strongly secured, founded upon such high public policy, cannot be lost by the mere absence of the party or family intended to be benefited. The homestead is not to be regarded as a species of prison bounds, which the owner cannot pass over without pains and penalties. His necessities or circumstances may frequently require him to leave his homestead for a greater or less period of time. He may leave on visits of business or pleasure ; for the education of his children; or to acquire in some more favorable location, means to improve his homestead ; or for the subsistence of his family; or he may intend to abandon, provided he can sell. But let him leave for what purpose he may, or he his intentions what they may, provided they are not those of total relinquishment or abandonment, his right to the exemption cannot be regarded as forfeited. And if he did intend on leaving to abandon, this may he changed by him, up to the time that he acquires a new homestead. He may show this change by the resumption of his residence; or it may be made known in other modes ; and however it may be made known or ascertained, it will be effectual to protect his rights; for if the place be in fact his homestead, it cannot be" exposed to forced sale. Frauds will not he permitted; hut the right to the homestead cannot be forfeited unless by a party’s showing a continuous abandonment up to the time that some opposing right by sale has vested legally in other parties.

The law of the case was fully expounded to the jury. There was no error in the charge, at least none of which the appellant could complain. We are satisfied with the finding of the jury. They were acquainted with the parties, and were the judges of the weight to be given to the petulant observations of this old lady, made, some of them at least, when she was in very bad humor. They found, and we think properly, that she had not abandoned her homestead; and the judgment is affirmed.

Judgment affirmed.