| Tex. | Jul 1, 1878
Without a radical departure from what has been hitherto regarded as settled law, by an almost unbroken line of decisions of this court, it cannot be insisted that the mere removal of Prather and wife from the land in controversy to Sulphur Springs operated ipso facto an abandonment of it as their homestead, so as subject it to alienation or incumbrance by the husband without the consent of the wife at the date of the trust deed given by Prather to >
We are not to be understood, however, as intimating that in no case can the homestead be regarded as abandoned in favor of creditors, or purchasers from the husband without the joinder of the wife, until another homestead has been actually acquired; or that the husband and wife, or the wife alone, if he refuses to join her, may successfully assert a right to their former homestead at any indefinite period after leaving it, because of the husband’s voluntary or involuntary failure to pay for another place for which he may have contracted with the intent of making it their home for the future. (Woolfolk v. Rickets, 41 Tex., 358" court="Tex." date_filed="1874-07-01" href="https://app.midpage.ai/document/woolfolk-v-rickets-4892194?utm_source=webapp" opinion_id="4892194">41 Tex., 358; Woolfolk v. Rickets, 48 Tex., 28" court="Tex." date_filed="1877-07-01" href="https://app.midpage.ai/document/woolfolk-v-ricketts-4892953?utm_source=webapp" opinion_id="4892953">48 Tex., 28.) But, we say, whatever might be our views if it were an original -question, in the language of Judge Hemphill, if “a homestead maybe disrobed of its guaranties and the protection lost ” before “ a new and permanent one has been acquired,” “it must be undeniably clear, and beyond almost the shadow, at least, of all reasonable ground of dispute, that there has been a total abandonment, with an intention not to return and claim the exemption.” (Glouhenant v. Cockrell, supra.)
It cannot be questioned that the land in controversy was the homestead of Prather and wife prior to the fall of 1872. The only evidence of its abandonment, aside from the mere declarations of Prather and those of a party who gave him a letter of introduction to appellees, is the statement of Mrs. Tumlin, to the effect that in the fall of 1872 she rented a place of fourteen acres in Sulphur Springs to Prather and wife; (to which they moved, as other witnesses testify, late in the fall;) “ that they said they wanted to live in town to educate their children.” But whether this purpose could be accomplished by a mere temporary residence, or would have to be of a comparatively permanent character, is not attempted to be' shown. Thus stood the matter at the date
Mrs. Tumlin testifies that she agreed, some time in the year 1873, to sell or exchange to Prather the place which he rented of her “for lands out West”;- but she also says that afterwards, having “ learned that his title to those lands was not good, the trade was recanted, no writing having been signed.” Certainly this mere unconsummated negotiation by the husband for a new home, cannot be held to give effect to his previous deed, in which the wife did not join, to the old one.
The mere declarations of the husband or of third parties, though ever so fraudulent, if false, do not bar or prevent the assertion of the homestead exemption by the husband and wife. bTor will the declarations of the wife, nor her written recognition and ratification of the previous deed of her husband not in conformity with the statute regulating conveyances by married women, but which are not shown to have misled the parties claiming under the deed from her husband to their injury, estop her from asserting her homestead rights.
In the fall of 1873, and without having acquired a permanent home elsewhere, Prather and wife returned to the old place, and were residing upon it as their homestead when it was sold by appellees under the trust deed. The homestead never having been abandoned, this sale was inoperative and
While a careful examination of the evidence- impresses us with the painful conviction that the humane and beneficent provision of the Constitution exempting homesteads from sale by the husband without the consent of the wife, expressed in the manner prescribed by statute, has been used, at least by the husband, to practice a gross and palpable fraud, still we are forced to say that the evidence is clearly insufficient, in the light of the former decisions of the court, to support the judgment. It. must, therefore, be reversed and the cause remanded for another trial.
Reversed and remanded.
[Justice Bonner did not sit in this case.]