Vance v. Doebbler , 2 Posey 493 ( 1882 )

Opinion.— The question sought to be presented by appellants in their assignment of errors is as to whether or not Doebbler and wife had abandoned the lot in controversy as their homestead. The assignment is obnoxious to the statute, which requires the appellant to distinctly specify the ground on which he relies, or else the errors will be considered as waived. The rule is well settled that, in the absence of such an assignment of errors as is required by law, the court would be authorized in reversing the judgment only when it is apparent from the record that an error has been committed in the court below, and that the ends of justice require that the judgment should be reversed.

The appellants claim that, as the pre-emption law then in force required Doebbler to reside for three consecutive years upon the Grape Creek land before he could, obtain a patent therefor, it follows that he did so reside on said land, and thereby abandoned his homestead in the town of Fredericksburg. The charges asked by appellants and refused by the court sought to present that view of the case. The refusal to give the charges asked was correct. Suppose the husband did perpetrate a fraud upon the state and.acquire a patent thereby for the Grape Creek land as a preemption, when, in fact, his family and himself were living upon and occupying the lot in Fredericksburg, certainly it will not be contended that Mrs. Doebbler would thereby forfeit her constitutional right to the homestead. And this would be the necessary result of the doctrine contended for by appellants.

The homestead is defined as a place of family residence or the property dedicated as such.

“The place of the house; the mansion house with adjoining land.” H. & G. N. R. Co. v. Winter, 44 Tex., 598.

“The leading idea in homestead exemptions is to furnish a home and shelter to the family.” Iken v. Olenick, 42 Tex., 195.

From these definitions it follows that the question of what constitutes, or rather, where the homestead of a family is, would be a question of fact in the determination of which the three principal .elements are ownership, occupancy and intention.

The evidence, as disclosed by the record in this case, satisfactorily shows that the family, that is, Mrs. Doebbler and children, have occupied the lot in controversy as a home since about 1854; that Doebbler remained with his family the greater portion of his time, but was occasionally with his sister, who lived on the Grape Greek place or pre-emption. The court fully submitted the question of the abandonment of the lot as a homestead to the jury in a charge quite as favorable to appellants as they ought to have expected.

In our opinion the verdict of the jury was amply sustained by the evidence; in fact they could not properly have returned any other.

It appears that in taking the mortgage the appellants must have appreciated the trouble they would have in subjecting the lot to forced sale, as they also included therein the pre-emption on Grape Greek.

Affirmed.