The facts are as above stated.
When a homestead character once attaches to property, it will continue to be the homestead until abandoned by a going away therefrom with the definite intention never to return. 21 Cyc. 579; Sykes v. Speer (Tex. Civ. App.) 112 S.W. 426; In rePresnall (D.C.) 167 Fed. 406.
And an intent never to return if the occupants going away from it can realize their desires and expectations elsewhere, and thereupon sell their homestead, being conditional, is not sufficient.
Abandonment is a question of fact in which the intent of the parties in leaving the homestead is controlling. Sykes v.Speer, supra; In re Presnall, supra.
Abandonment must be established by the most clear, conclusive, and undeniable evidence. Shepherd v. Cassidy, 20 Tex. 29, 70 Am. Dec. 372; Gouhenant v. Cockrell, 20 Tex. 96;Cross v. Everts, 28 Tex. 523; Mills v. Von Boskirk, 32 Tex. 360.
The case of Ross v. Hellyer (C. C.) 26 Fed. 413, relied on by plaintiff for a reversal of this case, presents a very strong argument to the effect that, as a matter of fact, the trial court might and should have found that the defendants had abandoned their homestead at the time of the execution of the mortgage. But, notwithstanding the strong evidence of abandonment, the trial court did not find such to be the fact; and there is some evidence reasonably tending to negative the evidence of abandonment and support the finding made. *Page 617
The following cases show that the evidence was sufficient in the present case to support the finding and judgment of the trial court: Rand Lumber Co. et al. v. Atkins et al., 116 Iowa, 242, 89 N.W. 1104; Minnesota Stoneware Co. v. McCrossen et al.,110 Wis. 316, 85 N.W. 1019, 84 Am. St. Rep. 927; Farmer v.Hale, 14 Tex. Civ. App. 73, 37 S.W. 164; Allen v. Campbell,53 Tex. Civ. App. 76, 115 S.W. 360; In re Presnall (D.C.) 168 Fed. 406; Sanders et ux v. Sheran, 66 Tex. 655, 2 S.W. 804; 21 Cyc. 597.
This court will not review an alleged error involving a weighing of evidence against conflicting evidence, except that it may do so upon questions in equity. Board of CountyCommissioners of Woodward Co. v. Thyfault., 41 Okla. 82,141 P. 409; Alfred v. St. L., I. M. S. Ry. Co., 42 Okla. 4,140 P. 415; Elwell v. Purcell, 42 Okla. 1, 140 P. 412.
Section 2, art. 12 (Williams' Ann. Ed., sec. 303), of our Constitution provides:
"* * * Nor shall the owner, if married, sell the homestead without the consent of his or her spouse, given in such manner as may be prescribed by law: Provided, Nothing in this article shall prohibit any person from mortgaging his homestead, the spouse, if any, joining therein; nor prevent the sale thereof on foreclosure to satisfy any such mortgage."
This provision clearly prohibits and renders void the mortgage in this case. Whalen v. Allen et al., post,145 P. 1158. Also see Alton Mercantile Co. v. Spindel, 42 Okla. 210,140 P. 1168.
For the reasons stated, the judgment of the trial court should be affirmed.
By the Court: It is so ordered. *Page 618