On Appellees' Motion for Rehearing. When this case was decided by this court, the writer reluctantly assented to the judgment of reversal, although he had stated to his Associates in consultation that he was strongly inclined to the view that the judgment of the trial court should be affirmed, and that he did not indorse all that was said in the opinion filed by this court. After reconsideration, upon appellees' motion for rehearing, Mr. Justice BRADY and myself have reached the conclusion that this court has rendered an improper judgment, and that the motion for rehearing should be granted, and the judgment of the trial court affirmed.
The undisputed proof shows that by deed dated December 11, 1903, the plaintiff Mrs. Mary C. Williams conveyed the land in controversy to the defendant Berry Bishop; that deed shows upon its face that it was executed —
"for a consideration of services rendered to me and my minor children, and the assistance by said grantee herein, the said Berry Bishop, in paying out balance due on land purchased by me since the death of my husband, W. T. Williams, now deceased, and for the further consideration of the love and affection I have for my son, Berry Bishop."
The proof shows that Mrs. Williams' husband died in 1901, leaving his wife and *Page 515 several minor children surviving him. Berry Bishop is a son of Mrs. Williams by a former husband, and was 21 years of age when his stepfather, Mr. Williams, died. On January 4, 1902, Mrs. Williams purchased a tract of land, containing about 275 acres, and in part payment therefor executed three notes, for $250 each, dated December 11, 1901, and due one, two, and three years from date. That tract of land adjoins the 80 acres of land in controversy in this suit. Mrs. Williams testified as follows:
"Berry stayed at home with me after his papa died, and worked on the place and helped me make a crop, and he lived with me in the house and made the crops until he married, and about two months after he married. He married May 24, 1903. It is a fact that Berry helped me pay the outstanding indebtedness on that place, $750. The only way I had was to pay out of the crops on the place, and he made part of them, not all. Jeff Minor worked it one year. The first year after Mr. Williams died, we worked the place ourselves; none was rented. Berry worked it with the help of Boley. Boley was about 12 years old. There was about 135 acres in cultivation then, something over 100. It is a fact that I told Berry that, if he would live on the place there with me and help me pay for it, I would convey him this 80 acres, and I did convey him the 80 acres, by reason of the fact that he had helped me pay these notes. I had no other source of income at all, no other property than what I have mentioned, and when I state in the deed that I conveyed it to him for the consideration for work done and love and affection, that is carrying out my agreement with him that I would let him have the 80 acres for helping pay the notes, and those notes were the three $250 notes that I assumed the payment of to Mr. Yarbrough, and finally those notes got in the hands of Brown Bros."
That testimony, together with other corroborative evidence, justified the trial court in finding that Mrs. Williams and her son Berry Bishop entered into a contract, after the death of Mr. Williams, to the effect that, if Berry Bishop would remain on the farm and manage the same, and thereby aid Mrs. Williams in paying off the $750 indebtedness against the farm, she would for that reason, and on account of the fact that he was her son, donate and deed to him the land in controversy. It is true that, at the time Mrs. Williams conveyed the land to Berry Bishop, he was a married man, and had been such for about 7 months, and it is also true that only a part, and not all, of the $750 owing on the land had been paid at the time she deeded the 80 acres to her son. But the testimony warranted a finding by the trial court to the effect that, at the time Mrs. Williams executed that deed, Berry Bishop had rendered valuable assistance to his mother, the grantor in the deed, in managing the farm, and thereby enabling her to pay off a portion of the indebtedness against it, and that the most of such service was rendered prior to his marriage, on the 24th day of May, 1903. In fact, it is admitted on page 9 of appellants' brief that, before Mrs. Williams purchased the 275 acres of land, she entered into a contract with Berry Bishop to convey him the 80 acres of land in controversy, in consideration of his assisting her in paying for said lands, and that he did so assist her. Therefore the proof shows that the title which Berry Bishop obtained by the deed from his mother to him had its inception in a contract between them, which was made about 2 years before his marriage, and part of the pecuniary consideration for the conveyance had been received by Mrs. Williams before the marriage of Berry Bishop, which seems to bring the case within the purview of Stiles v. Hawkins, 207 S.W. 89, where it was held by the Supreme Court that, where settlers on public land, who had had the same surveyed, but had not made the cash payments required by law, assigned their interest to an unmarried man, who after his marriage made the cash payments to the state, and received a patent for the land, the land became his separate property, subject to the right of the community for reimbursement for community funds used in completing the payments. See, also, to the same effect, Welder v. Lambert, 91 Tex. 510, 44 S.W. 281, and Creamer v. Briscoe, 101 Tex. 493, 109 S.W. 911,17 L.R.A. (N.S.) 154, 130 Am. St. Rep. 869.
In view of these facts, and the recital in the deed that it was executed "for the further consideration of the love and affection I have for my son, Berry Bishop," we are of the opinion that it was the intention of Mrs. Williams to convey the land to her son in his own separate right, and that it was not community property between himself and wife. It is quite clear that the entire consideration for the deed was not community funds, and that a considerable portion of it was received by Mrs. Williams before the marriage of Berry Bishop; and therefore, and as Berry Bishop's title had its origin in the contract made while he was a single man, when his mother deeded the land to him, it became his separate property, even though community funds may have subsequently been used in paying for it.
But, inasmuch as a homestead right attaches to separate as well as community property, if it be conceded that the property in question was the homestead of himself and wife when he undertook to deed it back to his mother, as his wife did not join in either of the deeds referred to, such attempts to convey were inoperative as long as the property remained homestead. However, and conceding that, at the time Bishop executed the first deed purporting to convey the property back to Mrs. Williams, it was the homestead of himself and wife, nevertheless, if thereafter, and by reason of abandonment, it ceased to be homestead, the deed referred to *Page 516 became operative, and reinvested title in her. Marler v. Handy,88 Tex. 428, 31 S.W. 636; Stallings v. Hullum, 89 Tex. 431, 35 S.W. 2; Anderson v. Carter, 29 Tex. Civ. App. 240, 69 S.W. 78.
As we view it, decisions by our Supreme Court have settled the law of this case as follows: The husband, as head of the family, has the right, while acting in good faith, to abandon homestead rights upon either separate or community property, and when the wife voluntarily leaves such property, and goes with her husband elsewhere, and the husband, believing that he is doing what is best for himself and family, without any intention to defraud his wife, forms the intention in his own mind never to return and use the property as a homestead, then, as soon as such removal and intention concur, the property ceases to be homestead, although no other homestead has been acquired.
In fact, the right of the husband to abandon the homestead without the consent of the wife, when in so doing he acts in good faith, is not, it would seem, dependent upon the fact that the wife has also voluntarily left the property and ceased to use it as her home; but such is not the case in hand. Slavin v. Wheeler, 61 Tex. 659. In the case cited, our Supreme Court, speaking through Mr. Justice Stayton, said:
"The Constitution protects to the wife the home of the family, and an attempt of the husband fraudulently to abandon it, prompted by malice or desire to deprive the wife of a home, would prove futile. There is nothing in this case to indicate any such disposition; were there, her right to protect herself in a home in such case has been recognized by this court in many cases. There cannot be one homestead for the wife and another for the husband, for the law protects but one to the entire family. No good reason can be given why, in the absence of some wrong by the husband, the determination of where the home shall be shall be left to the wife. We may say of the wife, as was said by Field, Chief Justice, in Guiod v. Guiod, 14 Cal. 507: `She is bound by her marital obligations to live with him, and when he changes his place of residence she must accompany him. There is no obligation resting upon him to permanently occupy the same place; indeed, the highest interests of himself and family, their health and maintenance, and the proper education of his children, may require a relinquishment of the homestead.'" But, as said above, this case does not belong in that class, because the undisputed proof shows clearly that Mrs. Bishop voluntarily left the property in controversy, and had resided elsewhere up to the time this case was tried.
Hudgins v. Thompson, 211 S.W. 586, is the latest decision by our Supreme Court up on the question of homestead abandonment, and in that case Mr. Justice Greenwood, speaking for the court, said:
"The trial judge rendered judgment against plaintiff in error on two conclusions: First, that the 40 acres continued to be the homestead of Horace Thompson and Mattie Thompson until they conveyed same to Frank Thompson; and, second, that the failure to show that the improvements made by Hudgins exceeded the rental value of the 40 acres after he took possession thereof defeated any right in Hudgins to specific performance of the contract of sale of the land. The Court of Civil Appeals affirmed the judgment of the court below upon the ground that the wife's consent is just as essential to the abandonment as it is to the alienation of the homestead, and section A of the Commission of Appeals has recommended that the judgment of the trial court be affirmed, upon the ground that the husband cannot lawfully abandon the homestead, without the wife's consent, unless another homestead be acquired.
"In our opinion, the facts are conclusive that Horace Thompson abandoned the 40 acres prior to the conveyance to Frank Thompson, and that thereupon Lon Hudgins became invested with the right to compel specific performance of the contract of sale to him, and that the claim of Frank Thompson is subject to such right. The conduct of Horace Thompson in entering into the contract of sale of the 40 acres, in accepting and retaining part of the purchase price therefor, in surrendering possession to Lon Hudgins, in conveying the land to Frank Thompson, and in establishing and maintaining the family residence elsewhere, is inconsistent with any other intention than not to use the 40 acres as a home, after the date of the contract of sale. Had Horace Thompson and wife conveyed the 40 acres to Lon Hudgins, no one would question Horace Thompson's intention from the date of the contract of sale. With respect to such intention, the deed to Frank Thompson indicates nothing variant from a deed to Lon Hudgins.
"It is only the homestead which the husband is forbidden to sell by section 50 of article 16 of the Constitution without consent of the wife. Having once been used for the purposes of a home, the 40 acres retained its homestead character until lost by abandonment. Judge Stayton admirably condenses the law of homestead abandonment when he says: `Abandonment of property actually homestead cannot be accomplished by mere intention; there must be a discontinuance of the use coupled with an intention not again to use as a home to constitute abandonment.' Archibald v. Jacobs, 69 Tex. 251, 6 S.W. 178.
"When neither use nor intention to use as a home exists, nothing is left which can reasonably or justly be held to satisfy the Constitution's definition of a `homestead.' After the removal from the 40 acres by Horace Thompson and his family, the application thereto of the homestead exemption was entirely dependent on the intention with which the removal was effected. Tackaberry v. Bank, 85 Tex. 493, 22 S.W. 151, 299. The evidence being conclusive that Horace Thompson's intention was clearly not to again use the 40 acres for home purposes, the essential intention to sustain the exemption was lacking, unless it be true that the head of the family cannot *Page 517 divest property of its homestead exemption by bona fide abandonment.
"The opinion in Smith v. Uzzell, 56 Tex. 318, 319, distinctly defines the power of the husband to bind the wife, with respect to abandonment of the homestead, in stating: `If, however, the husband, in fraud of the right 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; but while he acts in good faith and not against the will of the wife, having alone in view the good of the family, of which by nature and by law he is the recognized head, his power to abandon a homestead ought not to be questioned; and, 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.'
"The restraint on alienation by the married man owner is the same with respect to the business homestead as it is with respect to the residence homestead. Inge v. Cain, 65 Tex. 81, decided that `the husband, without the concurrence of the wife, may divest his place of business of the homestead protection by abandonment, and then himself convey it.'
"There is no difference between the power of the husband to abandon a part and his power to abandon all of the homestead. That he alone may in good faith abandon part or all was explicitly declared in Wynne v. Hudson, 66 Tex. 9, 17 S.W. 113, in these words: `To our minds it is too clear that, as to Thomas Hudson, a part, if not all, the property in controversy has lost its homestead character; for it has been rented, not temporarily, but rented, and intended to be rented, permanently, while tenants can be found to occupy it. Counsel for appellees seem to recognize that this is the true posture of the case as to Thomas Hudson; but the claim is that, as the homestead cannot be sold without the consent of the wife, given in the manner prescribed by law, therefore the husband has no power to do any act whereby a part of the homestead will cease to have that character. This, we think, is a mistake. The husband is the natural, as well as legal, head of the family, and it certainly is not true, when he once acquires a homestead more than sufficient for the ordinary purposes of a home and place of business, that he is tied to it for life, unless his wife may consent that a part of it may be used for some other purpose. Nor is it true, if, in good faith, and as he deems best for them who are dependent upon him, he removes from a homestead, with intent never to return to it again, that the homestead character will adhere to the abandoned home until the wife consents that it may cease. What constitutes an abandonment, as matter of law, is easily determined; but its application to particular cases is often difficult. The facts which evidence it must be clear.' To the same effect are Slavin v. Wheeler, 61 Tex. 659, and Rockwell Bros. Co. v. Hudgens,57 Tex. Civ. App. 504, 123 S.W. 186.
"The above cases announce the doctrine which generally prevails. A number of cases from other states are cited in the note to Stewart v. Pritchard (101 Ark. 101, 141 S.W. 505) 37 L.R.A. (N.S.) 807, where it is said: `Although there is some conflict as to the husband's right to abandon the homestead without the consent of the wife, it is generally held that he has such power, and that he may then make a valid conveyance by his sole deed if he acts in good faith.' This court has steadily refused to hold that the acquisition of a new homestead is a condition precedent to the exercise of the power or right of abandonment of the old homestead.
"Chief Justice Hemphill pointed out, in Gouhenant v. Cockrell,20 Tex. 97, that the substance of the holding in a previous opinion by himself in Shepherd v. Cassiday, 20 Tex. 24, 70 Am.Dec. 372, was: `That the right to an old homestead might be forfeited although a new one had not been acquired, where it had been abandoned with an intention not to return, and this intention was not changed before some opposing right had been legally vested by sale in a third person.' At the same time, Chief Justice Hemphill declared that the best evidence of homestead abandonment was that a new and permanent home had been acquired, and, in the absence of a new and permanent home, the old ought not to be held subject to the claims of creditors, unless the proof of `total abandonment with an intention not to return' `be undeniably clear and beyond almost the shadow, at least all reasonable ground, of dispute.'
"The single question presented by Woolfolk v. Rickets, 41 Tex. 362, was whether a charge was correct to the effect `that a homestead is not lost by abandonment until another has been acquired.' The charge was held erroneous under the decisions in Gouhenant v. Cockrell and Shepherd v. Cassiday, and the opinion of Associate Justice Reeves, after citing those decisions, thus concludes: `The leading proposition of the charge is that a new homestead must be acquired before the old one can be lost by abandonment, when, as has been shown, voluntary abandonment, with a fixed intention not to return, though a new homestead may not be acquired, will open the property to creditors, and we think, under like circumstances, the property would be open to purchasers also.'
"Scott v. Dyer, 60 Tex. 139, again declared that, before acquisition of a new homestead, the old would be considered abandoned on clear and conclusive proof that its use had been discontinued, with the intent not to return. In Reece v. Renfro, 68 Tex. 194, 4 S.W. 546, the court, per Chief Justice Willie, said: `It has been frequently held by this court that the homestead right may be lost by abandonment, and that to constitute abandonment it is not necessary that another homestead shall have been acquired. Jordan v. Godman, 19 Tex. 273; Smith v. Uzzell,56 Tex. 315; Woolfolk v. Ricketts, 48 Tex. 28.'"
With the foregoing observations, reference to and quotations from authorities, we now turn to appellants' brief, and the reasons therein assigned for asking a reversal of the judgment of the trial court, which awarded the land in controversy to the plaintiffs.
The first assignment in appellants' brief *Page 518 charges that the judgment of the court below is contrary to the law and the evidence, because the land in controversy was the homestead of the defendants at the time of the execution of the deeds under which the plaintiffs claim, which deeds were not signed by Mrs. Bishop, wife of the defendant Berry Bishop. Under that assignment but one proposition is submitted, which is that conveyance of a homestead by the husband without joinder of the wife is absolutely void. That proposition is unsound, as shown by authorities already referred to, holding that such deed is not absolutely void, and may become operative after the property has ceased to be homestead by abandonment.
The second assignment asserts that the court erred in rendering judgment for the plaintiffs, because the evidence showed that the defendants owned and claimed the land in controversy as their homestead at the time of the execution of the deeds by Berry Bishop, and that Mrs. Bishop, his wife, at no time intended to abandon her homestead right. The first proposition under that assignment is identical with the proposition submitted under the first assignment, and is disposed of by what we have said in reference to that proposition. The second proposition submitted under that assignment is:
"Where another homestead has not been acquired, in order to show abandonment of the homestead, it is necessary to prove that the wife concurred in her husband's intention not to use the land again as a home."
That the wife's concurrence in the husband's intention to abandon the homestead is not essential to such abandonment is shown by the authorities heretofore cited. The third proposition under that assignment is that there can be no abandonment of the homestead in which the wife does not join. That proposition is substantially the same as the second proposition already considered.
The third and fourth assignments of error present substantially the same questions as presented by preceding assignments, and require no further consideration.
The fifth assignment of error charges that the judgment is contrary to the law and evidence, because the deeds under which plaintiffs claim the land in controversy were executed by defendant Berry Bishop without any consideration therefor, and are therefore void. More than one answer can be made to that assignment. In the first place, appellants filed no sworn answer, charging that the deeds were without consideration. In the next place, a deed from parent to child, or child to parent, need not be supported by a valuable consideration; also, the property in controversy being the separate property of Berry Bishop, he could convey it by deed of gift, as long as such conveyance did not impair homestead rights, or rights of creditors. Newton v. Newton, 77 Tex. 508, 14 S.W. 157; Baker v. Westcott, 73 Tex. 129, 11 S.W. 157; Lott v. Kaiser, 61 Tex. 665; Newman v. Newman, 86 S.W. 635; Parker v. Stephens, 39 S.W. 164; Robinson v. Douthit, 64 Tex. 101.
The sixth and seventh assignments complain of the action of the trial court in permitting the plaintiffs to introduce in evidence the two deeds heretofore referred to, executed by Berry Bishop to the plaintiff Mrs. Williams, because same were executed without any consideration, and because, at the time they were executed, the property was the homestead of the defendants, and the wife did not join in executing the deeds. What has already been said disposes of those assignments adversely to appellants.
Other assignments relate to the question of limitation and other questions having no reference to abandonment of homestead rights. The question of limitation is treated in the former opinion filed by this court, and we adhere to that ruling.
The other questions not discussed in the former opinion, nor in this opinion, have received due consideration, and are unanimously decided against appellants.
The foregoing references to appellants' brief have been made for the purpose of showing that, in the opinion of the writer, the questions of Berry Bishop's intention to abandon homestead rights in the property and his good faith in doing so are not presented to this court for decision. Appellants' contention upon that subject, as disclosed by their brief, is that no abandonment of homestead was shown: (1) Because no other homestead had been acquired; and (2) because Mrs. Bishop did not consent to nor concur in her husband's intention to abandon the homestead. But, if it be conceded that the two questions referred to are presented to this court for decision, a majority of the court hold that the trial court had before it testimony sufficient to warrant a finding that, when Berry Bishop and his family removed from and left the property, such removal was with the intention upon his part never to return and use it again as a homestead, and that in so removing with such intention Berry Bishop was not actuated by any desire or purpose to defraud his wife concerning homestead rights, and some of that testimony will now be referred to.
The case was tried in November, 1918, and the undisputed proof shows that Berry Bishop and his family left the property and ceased to use it as a home about one year before that time, and had not returned to and resided upon it since they left it. They first went and lived a few months on another farm, and then moved to the town of Coleman, where they have resided ever since, and where the husband, Berry Bishop, paid his poll tax and voted, though the property here involved is not within the Coleman voting precinct. *Page 519
The witness Woodward testified that Berry Bishop stated to him that when he left the place he intended to abandon it and never go back and use it as his homestead, and thereafter be executed a deed for the purpose of conveying it to his mother. Berry Bishop denied making such statement to Woodward, but it was the province of the trial court to pass upon the credibility of the two witnesses, and we must assume from the judgment rendered that the court accepted Woodward's testimony as true. Such being the case, and in view of the fact that Berry Bishop subsequently executed a deed for the purpose of conveying the property to his mother, and other testimony relating to that question, we hold that the trial court was justified in reaching the conclusion that his removal from the property was accompanied by the intention to abandon it as a homestead. Blackburn v. Knight, 81 Tex. 326, 16 S.W. 1075; Kutch v. Holly, 77 Tex. 220, 14 S.W. 32; Mathis v. Obertheir, 50 Tex. 326; Jones v. Robbins, 3 Tex. Civ. App. 200, 22 S.W. 69. And if such abandonment was in good faith, then the deed which Berry Bishop had formerly executed became operative, and reinvested in Mrs. Williams whatever title was vested in Berry Bishop by the deed which she had formerly executed to him.
Concerning the question of good or bad faith, in Smith v. Uzzell,56 Tex. 315, the Supreme 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."
In the instant case there is no testimony whatever tending to show that the wife obJected and did not consent to the removal from the homestead, and there is no testimony that would warrant a finding that in making such removal, with the intention of abandoning the property as a homstead, Berry Bishop did not act in good faith, and did not do what he considered was for the best interest of himself and his family, unless it be the fact that long after such removal he executed a deed to his mother, for the purpose of conveying the property to her, without any pecuniary consideration. The record is barren of testimony tending to show that he was not a devoted husband and father, or that, at the time he left the property, he had any desire to deprive his wife and children of something which he knew they ought not to be deprived of. In the absence of testimony to the contrary, it is fair to assume that Berry Bishop loved his wife and children as much as husbands and fathers generally do. The property in question consists of only 80 acres, which is quite a small farm in that section of the state. The record indicates, and perhaps we should take judicial knowledge of the fact, that when Berry Bishop and his wife left the property a severe drouth was prevailing; similar drouths had prevailed in the past, and others would probably occur in the future. At that time Mr. Bishop was about 37 years of age, and it is fair to assume that his wife was not any older. They had a growing family of children, in the education and welfare of whom they were both interested.
In view of these facts, was it unreasonable or unjust if Mr. Bishop reached the conclusion that it would be for the best interest of the entire family to abandon the use of the property as a homestead, and either procure a larger farm, or engage in some other pursuit, in order to support his family and educate his children? Also it should be borne in mind that, while he received no pecuniary consideration for the execution of the two deeds which he made to his mother, he must have known that he obtained the property from her, and that part of the consideration which induced her to deed it to him was that love and affection which she, as his mother, felt towards him because of the fact that he was her child. In fact, he testified that he executed the first deed to his mother because some of his half-brothers were complaining because his mother had deeded the property to him. The testimony tends to show that Mr. Bishop, in executing that deed to his mother, was not actuated by any malevolent design towards his wife, but that his motive was to protect his mother from complaints or her other children. Of course, as the property was then homestead, such deed was ineffectual, because of the fact that Mrs. Bishop did not join in its execution; but, if the homestead was subsequently abandoned, then it became operative. Also it is conceded that, as the property was homestead at the time that deed was executed, Mr. Bishop's motive to aid and assist his mother, however worthy it may have been, could not change the fact that the property was homestead. In fact, Mr. Bishop's own testimony indicates that he was of the opinion that as the property was then homestead, and as his wife did not join in that deed, it was therefore absolutely void, and that the property remained his, just as it would have been if he had never executed that deed. He testified that he considered the property belonged to him after he had executed that deed, and that and other testimony justified the trial court in finding that he did not execute that deed for the purpose of impairing the homestead rights of himself and his wife. And the fact that he regarded that instrument as absolutely void tends strongly to show that he did not abandon the property for the purpose of rendering that deed effective, and thereby depriving his wife of her homestead right.
In fact, all the testimony bearing upon the question of abandonment tends to show that he removed from the property for other reasons, and that in so doing he was acting for *Page 520 what he regarded as the best interest of himself and family. Hence it follows that, if the second deed was executed for the purpose of impairing the wife's homestead right, if he had no such intention when he abandoned the property with an intention never to return and use it as a home, the first deed from him to Mrs. Williams became operative and vested the title in her. And in view of all the facts and circumstances referred to we hold that the trial court had before it testimony which will support a finding in appellee's favor, upon the question of good or bad faith upon the part of Berry Bishop in abandoning homestead rights.
The opinion of this court, prepared by Mr. Justice JENKINS, assigns nine reasons for holding that the testimony will not support a finding that, if Bishop abandoned his homestead, he did so in good faith, and with no intent to defraud his wife of her homestead rights. Those reasons may be answered as follows:
1. Mrs. Bishop was a witness in the case, and did not testify that she was ignorant of her husband's intention to abandon the homestead, and there is no proof in the record concerning that question. According to the ruling made in Smith v. Uzzell, supra, if it was necessary that she should have known that fact, in the absence of proof to the contrary, it will be presumed that she did. However, it is immaterial whether she knew it or not. If Bishop, when the family removed from the homestead, doing what he considered was for the best interest of his family, determined never to return and use it as a home, it was thereby abandoned as a homestead, although his wife, if knowing his intention, may have protested against such abandonment.
2. It was not necessary for Mrs. Bishop to have any notice of her husband's intention to abandon the homestead.
3. Although Bishop may have left his home for the purpose of employment, rendered necessary by the drouth, and in order to support his family, he may have done so with the intention of never using the property again as a home. In fact, the conditions referred to may have constituted his reason for abandoning the homestead.
4. And the same may be said with reference to the fact that they went to the town of Coleman, in order to send their children to school.
5. The husband could abandon the homestead without the acquisition of another homestead.
6. Abandonment of homestead rights does not signify that the owner of the property has abandoned his claim of ownership; and therefore, without making it his home again, the husband may cultivate, rent, or otherwise utilize the property, and Bishop did no more than that after removal from the property.
7. As the property belonged to him in his separate right, if he removed from it under such circumstances and with such intention as constituted abandonment, it was immaterial that he made a deed of gift to his mother. In other words, the fact that he subsequently deeded it to his mother without any pecuniary consideration does not necessarily show that his prior abandonment of the property was for the purpose of defrauding his wife; and, as heretofore pointed out, there is testimony in the record which will support a finding that such was not his intention.
8. It was not necessary to prove that Mrs. Williams had taken possession of the land in order to show good faith abandonment by Bishop.
9. In our judgment, the property did not belong to the community estate, and therefore giving effect to the deed in question would not constitute a gift of community property.
For the reasons stated, appellees' motion for rehearing is granted, and judgment of the trial court is affirmed.
Motion granted.