This is a suit brought by the appellees, French Smith and wife,- against the appellant, Holliman, of trespass to try title. The property in controversy consists of a house and some lots in the town of Segnin, and commonly known as the “Elm Spring Place.”
It appears that the property in controversy was sold by the sheriff of Guadalupe county in 1859, by virtue of levies thereon of several executions he held in his hands against French Smith, one of the appellees; and at the sale the appellant became the purchaser of the property,' and the sheriff executed a deed to him as such purchaser.' The purchaser soon thereafter went into peaceable possession of the property, and has resided thereon ever since.
The judgment of the District Court was for thelplaintiff *361in the action, and defendant appealed the case to this •court.
It seems that the case turned in the court below almost if not entirely upon the question of homestead, and the appellants’ counsel present these two issues for our consideration :
1. Was the property in controversy the homestead of the family at the time of the sheriff’s sale %
2. If it was, did the appellants by their acts deprive themselves of the right to set up that homestead as ■against Holliman ?
A reference to the facts as shown by the record will be necessary to a proper solut ionof these questions.
Smith owned two places, with a residence on each—this •“Elm Spring place,” in the town of Seguin, and a tract of some 1200 acres some miles in the country, commonly known as the “Darst Creek place.” The appellees, at different times, had lived on each place. At the date of the sale by the sheriff the appellees, with their family, lived on the latter place.
The proof shows that on the day of sale Smith was ^present and announced to all persons present that he claimed his homestead on the “Darst Creek place,” where he then resided, and an attorney-at-law announced for and in the name of Mrs. Smith the same fact. The testimony shows that they did at that time reside on the “ Darst Creek place,” and that the “Elm Spring place” brought a larger price on account of these announcements •than it would otherwise have brought.
These announcements were made, it seems, although the “Darst Creek place” had been sold only a few minutes before by a trustee, to satisfy á debt to secure which Smith and wife had executed a deed of trust while they, lived on the “Elm Spring place.” There is proof that at different times previously Mrs. Smith had claimed the *362“Elm Spring place” as the homestead, and to one witness who was proposing to purchase it she said she would not give her consent to the sale of it.
In view of these facts, was the property in controversy the homestead of the family on the day of the sheriff’s sale ? Clearly not, either in law or in fact. The appellees did not live on it. They did live on other property, which they claimed as homestead, and at the very time of sale claimed it as such. The homestead is the place of, family residence, or the property dedicated as such.
The Constitution and laws exempt the homestead—not such property as might be made such, if the parties desired so to do.
If they had had no residence and had claimed none, and they had had unimproved land capable of being made such, and the levy had been made on it, and the-sale made by the sheriff, with the appellees standing by and assuring bidders that it was not their homestead,, could they, after the sale, set up the claim of homestead and oust the purchaser % To permit them to do so would, be to sanction a fraud, and allow parties to profit by their own flagrant wrong, and under the sacred name of* homestead to outrage justice and the law.
The husband is the head of the family. He, not the-wife, chooses and establishes the homestead, and when® he establishes it, his homestead becomes her homestead,, whether she be willing or unwilling.
There cannot be protected by law two homesteads for-the same family, one for the husband and one for the wife. The law protects but one, and that one is the-homestead dedicated as such by the head of the family.. When he sees fit to change the homestead and dedicates another, eo insianti the new homestead becomes that of the wife and family also.
If Smith saw fit, after he and his wife had charged the *363Darst creek place with a mortgage, to abandon his former homestead, to dedicate the Darst creek place as the homestead, to move upon it and to take the chances of saving it from sale by previously discharging the mortgage or otherwise, and on the very day of sale he and his wife both cling to it and renounce all claim to the-former homestead, thereby inducing bidders to part with their money in its purchase, they simply did so at their own peril. Neither the wife, nor the husband, nor both,. can effectually reassert claim to the former homestead: under such circumstances. (Cravens v. Booth, 8 Texas, 243; Crayton v. Menger, 9 Texas, 285; Chubb v. Johnson, 11 Texas, 469.)
This is the law of this case; and the court, in not so instructing the jury, erred.
The judgment is reversed and the cause remanded.
Reversed and remanded.