When this case was formerly before this court, (42 Tex., 596,) it was held, that it appeared, from the recitals in the deed from Sterne and wife to Chiles, that their intention was to divest the property of its home*338stead character, and that the legal effect of that instrument was an abandonment of the homestead. It was further held, that it was a question of fact whether, after this abandonment, the premises again became the homestead of Sterne; and that the fact that Sterne remained on the place after the conveyance did not, as matter of law, undo what had just been done, and make the abandoned place again his homestead; but that it. was for the jury to say whether his occupancy was of such a character, and with such intentions, that, at the time of his death, the place was once more his homestead. On the last trial, the court, in its charge, embodied substantially the views of the law expressed in that opinion. We have seen no reason to change those views, but still regard them as consistent with the object and spirit of the homestead exemption, and not inconsistent with the former decisions on the subject. The late period in the term at which this case was submitted, docs not admit of any extended discussion of the subject or the authorities which bear upon it; and, for the present, we must content ourselves with stating that we adhere to and are satisfied with the conclusions arrived at on the former appeal, as expressed in the opinion.
The evidence on the last tidal did not differ materially from that on the fij^t, except that it was- conceded that Sterne procured a divorce in the District Court of Harris county in December, 1852. The evidence as to the character of Sterne’s occupancy is to some extent conflicting, and, in our opinion, the court did not err in refusing to disturb the verdict. The contrary view of the evidence fails to give to the abandonment by the conveyance to Chiles its due force, and fails to distinguish between the effect of a partial occupancy under such circumstances, and occupation in an ordinary case, where there had been no abandonment.
Ho material error was committed in the exclusion of evidence. The divorce was admitted on both sides, and the fact that in the decree of divorce the premises were allotted *339to Sterne was not material, on the only real issue on the last trial, viz.: Was the place Sterne’s homestead when he died? The recitals of the inventories made by the administrators were not evidence on that issue, whatever might have been their importance had the defendant on the last trial relied on the defense of purchase without notice of homestead. That ground of defense was not submitted to the jury by the charge, and may be regarded as having been abandoned.
It is complained, that the court erred in refusing to instruct the jury, that if Mrs. Sterne voluntarily abandoned her husband, left the State, and went to and remained in California, with intent not to return, Sterne might, have readopted the homestead without investing. Mrs. Sterne with any homestead interest therein. We think, that, from the entire evidence, it is apparent that the separation was by mutual agreement, and that the testimony of Mrs. Sterne, that she voluntarily abandoned her husband, meant no more than that she agreed to the separation, and in pursuance of that agreement went away. Such being our construction of the evidence, we think the charge asked was correctly refused.
As to other charges refused, so far as was material, they were substantially embraced in the charge given.
It is claimed, that the judgment removing the cloud from appellee’s title was not responsive to the pleadings, and may have the effect to debar plaintiffs from another suit. It is believed that a similar form of judgment has become quite common in cases of trespass to try title,«and that in such cases, where the pleadings of the defendant were purely defensive, the form, though inappropriate, will not operate to prevent a second suit, and the use of such form is not such error as need be corrected. The judgment is affirmed.
Affirmed.-