Thе 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 defendаnt, James W. Shepherd, claims that the plaintiff had abandoned her homestead, and that he purсhased the lot at Sheriff’s sale.
The plaintiff left Bastrop on or about April, 1855, and the lot was sold in Oсtober of the same year, the plaintiff in the mean time living with her children in Austin, where she has ever sincе
The question of abandonment of homestead, or by what acts and circumstances a person who has a homestead forfeits his right to the exemption bеfore 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 оne; that his existing domicil continues until he can acquire another; and that by acquiring a new domicil hе 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;
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 abandоnment of the homestead, with an intention not to return. An old domicil cannot be forfeited' without cоnclusive proof that a new one has been acquired. If an old homestead can be lоst, without proof that a new one has been gained, certainly the circumstances to show аbandonment 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 аnd 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 peacе, 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 regаrded as a species of prison bounds, which the owner cannot pass over without pains
The law of the case was fully exрounded to the jury. There was no error in the charge, at least none of which the appеllant could complain. We are satisfied with the finding of the jury. They were acquainted with the partiеs, and were the judges of the weight to be given to the petulant observations of this old lady, made, sоme 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.