Findings of Fact. This suit was brought by Mary C. Williams and her children by her second marriage, against Berry Bishop, her son by a former marriage, and his wife, Meppie Bishop, to recover 80 acres of land.
Mrs. Williams bought 275 acres of land soon after the death of her second husband, paying therefor $2,000, the community property of herself and her second husband, and executing her three promissory vendor's lien notes, for $250 each, payable in one, two, and three years, respectively, after December 11, 1901.
Berry Bishop was not married at that time, and was not living with his mother, but at her request he came home, under an agreement with her that he would work the farm on the 275-acre tract, support her and her family, and pay the notes as they fell due, in consideration of which she agreed to deed him the 80 acres of land in controversy, which adjoined the 275-acre tract. It does not appear how she obtained this 80-acre tract. This agreement was complied with by Bishop, and on December 11, 1903, Mrs. Williams executed a deed to him for the land in controversy, reciting the fulfillment by Bishop of the contract above referred to.
Bishop married his coappellant May 24, 1903, and they occupied the land in controversy as their homestead until the fall of 1917, at which time they moved to the town of Coleman, Bishop obtaining work as a section hand, and they lived in a rented house to the time of the trial hereof.
On November 5, 1904, Bishop executed a deed to his mother for the land in controversy, reciting as a consideration her promissory vendor's lien note for $700. In fact, no such note was given, nor intended to be given. No consideration was paid, nor promised, for the execution of such deed. At the time of the execution of such deed, Bishop promised his mother to pay her, annually, the usual crop rents on this land, and he did so to the time of the trial. Mrs. Bishop did not join in the execution of this deed, and it is not made to appear that she knew of same, or of the agreement to pay rent, or of the payment thereof.
Bishop's explanation as to why he executed this deed to his mother is that her other children were complaining to his mother about her having deeded this land to him, and that he executed the deed to prevent her being annoyed, and that he agreed to pay her rent as a contribution to her support. This explanation was not denied by Mrs. Williams.
On August 9, 1918, Bishop executed a deed to the land in controversy to his mother. Mrs. Bishop refused to join in this deed.
The case was tried by the court without a jury, and judgment was rendered for appellees.
Such other facts as are material will be stated in our opinion herein.
Opinion. The trial court did not file its findings of fact or conclusions of law, and hence we do not know upon what theory the judgment was rendered. Under the pleadings and the evidence, it could have been rendered only upon the plea of limitation by appellees, or upon the theory that the homestead had been abandoned when the deed of August 9, 1918, was executed.
The plea of limitation finds no support in the evidence. Mrs. Williams was never in possession of the land, unless she held same through Berry Bishop as her tenant. The deed to her of November 5, 1904, was void, for the reason that the land was then the homestead of Bishop and wife, and the wife did not join in the execution of the same. A husband cannot change the homestead character of land, upon which he and his wife continue to reside, by attorning to one *Page 514 who has no title to same. Dykes v. O'Conner, 83 Tex. 161, 18 S.W. 490; Dotson v. Barnett, 41 S.W. 100; Williams v. Galveston, 58 S.W. 552; Lumpkin v. Woods, 135 S.W. 1141.
If the land had not been abandoned as a homestead by appellants at the time of the execution of the deed of August 9, 1918, it of course conveyed no title to Mrs. Williams. Abandonment of a homestead consists in removal from the same, combined with the intention not to again return and occupy it. Mr. Woodward, who drew the deed last above referred to, testified that Bishop, at that time, told him that when he left the place he never intended to go back to it, and had abandoned it as his homestead. This, though denied by Bishop, must be, for the purposes of this appeal, taken as true.
Proof of an intention to abandon a homestead must be clear and conclusive. Gouhenant v. Cockrell, 20 Tex. 98; Cross v. Everts,28 Tex. 534; Wynne v. Hudson, 66 Tex. 9, 17 S.W. 110; Ayers v. Shackey, 2 Posey, Unrep.Cas. 275.
A husband cannot deprive a wife of her homestead by abandoning the same, where such abandonment is not in good faith and is in fraud of the rights of the wife. Smith v. Uzzell, 56 Tex. 318; Gray v. Fussell,48 Tex. Civ. App. 261, 106 S.W. 455; Brewery Association v. Walker,23 Tex. Civ. App. 6, 54 S.W. 361; Myers v. Evans, 81 Tex. 319,16 S.W. 1061; Huss v. Wells, 17 Tex. Civ. App. 195, 44 S.W. 34-35; Medlenka v. Downing, 59 Tex. 40. In Smith v. Uzzell, supra, as quoted with approval in Hudgins v. Thompson, 211 S.W. 587, the court said:
"If, however, the husband, in fraud of the rights of the wife, and without her consent, should seek by an abandonment to withdraw the homestead from the pale of its exemption given for the benefit of the family, he could have no power to do so."
We are of the opinion that the evidence is insufficient to support a finding, if any was made, that Bishop abandoned his home in good faith, and without the intent to defraud his wife of her right to her homestead. The evidence upon which we base this conclusion is: (1) If Bishop had any intention to abandon his homestead, it does not appear that he made such fact known to his wife, who had no such intention. (2) The circumstances under which they left their home did not put her upon notice of such intention. (3) Bishop left home for the purpose of employment, rendered necessary by the drouth, in order to support his family. (4) Mrs. Bishop moved with her husband to the town of Coleman, in order to school her children and to be with her husband. (5) They moved into a rented house, and never acquired or attempted to acquire any other homestead. (6) Bishop attempted to cultivate the farm in 1918 (which was also a year of drouth in that country), by breaking all of the land, renting a part of it to tenants, and hiring a hand to cultivate a part of it. (7) He received no consideration for the deed to his mother. (8) Mrs. Williams is not shown to have taken possession of the land. (9) The deed to Mrs. Williams, if allowed to take effect, constitutes a gift of the community property of Bishop and his wife, which she was claiming as a homestead, she having done no act inconsistent with such claim.
Bad faith on the part of the husband was not an issue in Hudgins v. Thompson, supra. It does not appear that the wife objected to the contract to sell the homestead to Hudgins, but only that she was not consulted as to such transaction. It appears that she went with her husband, and willingly resided upon a rented place until another homestead was obtained, and that she joined, in statutory form, in a deed to the former homestead to another party. There is nothing in the case to show that Thompson did not in fact act for the best interest of his family, or that his wife ever doubted that he was doing so.
In Smith v. Uzzell, supra, the court said:
"In the absence of evidence to the contrary, it ought to be presumed, when a removal from a homestead is made, that it was made in good faith and with the consent of the wife."
For the reasons stated, judgment of the trial court is reversed, and this cause is remanded for a new trial.
Reversed and remanded.