The facts show a residence of defendant, as head of a family, on fifty acres of land, about one mile distant from the tract of two hundred and forty-six acres, the subject of litigation.
That, as between the estate and the plaintiff, the two hundred and forty-six acres is held in common.
That the mortgagee, who is intervenor, had no notice of the equity to one-half owned by the plaintiff.
The court adjudicated that the two hundred and forty-six acre tract was subject to homestead rights to extent of one *402hundred and fifty acres in favor of the estate, represented by the defendant below.
[Opinion delivered June 14, 1880.]There should'result from these facts and such adjudication : t
1. That the one hundred and fifty acres homestead belongs in common to the plaintiff and the estate, subject to partition. Lacy v. Clements, 51 Tex., 162.
2. That as to the remainder, the ninety-six acres, it is subject to partition between the plaintiff and the eptate; the-half set apart to the estate to be sold first, and, if not sufficient, then the other forty-eight acres to be sold; after satisfying the debt of intervenor, the excess to be paid to the plaintiff.
Reversed and reformed in accordance with this opinion.
Reversed and reformed.