At the last term of this court opinion was rendered in this case affirming the judgments of the lower courts. A motion for a rehearing has since been filed in which it is pointed out that we *Page 128 overlooked the findings of fact as found by the trial court and Court of Civil Appeals. The criticism of the opinion is correct. The trial court distinctly found that "John J. Reasor never cultivated the thirty-nine acres of land or any part of it by himself or through anyone else, but rented the same from time of the purchase to the time of his death to yearly tenants, who paid, for the use of the same, the usual rental of one-third and one-fourth of the crop. John J. Reasor occasionally hauled his part of the crop to his residence on ninety acres, and he used the same for the support of his family. This use of the thirty-nine acres by John J. Reasor renting it and using the rents for the support of himself and family made it a part of the homestead."
There was, however, evidence in the record that Reasor was seen cultivating the land, and, following this, and not having in mind the finding of the trial judge, we so stated the facts in our opinion. The evidence to which we refer, while undisputed in a certain sense, is of such a character that we do not feel that the trial judge was bound to give it credence. Therefore his finding upon the facts must be conclusive upon us and the circumstances of cultivation by the defendant upon which the former opinion relied in part can not be considered. Under these circumstances we are of opinion that the facts established by the evidence are not sufficient to show that the thirty-nine acres of land was a part of the homestead of the father of the defendants in error.
In defining what shall constitute a homestead, section 50 of article XVI of the Constitution expressly provides that the rural homestead may be one or more parcels, but at the same time provides, "that the same shall be used for the purposes of a home, or as a place to exercise the calling or business of the head of a family." It is clear, therefore, we think, before a homestead can be claimed upon land, it must be used for some one purpose of a home, either by cultivating it, using it directly for the purpose of raising family supplies, or for cutting firewood and such like. The alleged fact that the father of the defendants in error cultivated the tract in question having been found against the defendants in error by the trial judge, we find no evidence that the land was used for the purpose of a home other than that the proceeds were probably used in support of the family. In the case of Blum v. Rogers (78 Tex. 530), we held that the building of a house within a town on a certain lot and renting it deprives it of its homestead character. We see no reason why the same rule should not apply to a rural homestead. Any expressions in our former opinion to the contrary are now withdrawn. We accordingly reverse the judgment and remand the cause for a new trial.
Opinion filed December 2, 1908.
Reversed and remanded. *Page 129