The questions submitted really constitute but the one issue, whether the court erred in holding the land subject to the debt as against the homestead rights of the defendants.
The testimony shows an exchange of lands made Febru-. ary 3, 1874, in which E. S. Skaggs received a title bond for the land in controversy, acknowledging payment The land was in the possession of a tenant for that year, so' that Skaggs and family could not move upon it. The tenant, however, at once attorned to Skaggs.
Upon this the equitable title to the land became complete; and had the homestead been fixed upon it by any mode recognized by the law, its quality as such would not be changed save by conveyance by husband and wife, with her privy acknowledgment, or by its abandonment as the homestead.
There is testimony of declarations of intént to make the property the homestead — made by both husband and wife. These declarations, and the testimony given as to such in*497tent as a fact, together with the evidence that a few articles of furniture and personal property were sent to and left on the place soon after its purchase, are relied on by the defendants.
On the other hand, is the fact that no residence ever was fixed upon the land until the early part of the year 1876, more than one year after the title bond had been used as a means of credit in the purchase of the Fort Worth mills, and subsequent to the conveyance to plaintiff of the legal title by Winuey.
Add to this, that Skaggs and his family resided, subsequent to his purchase, at Cleburne, in business some distance from the land, and that he, sought out the plaintiff and traded with him, using the title bond as security, without disclosing his intentions respecting the homestead; that contrary declarations touching his intent were made to Geo. Mulkey, that he wished to trade the land for mill property, and had bought it' for that purpose; the subsequent movements of the family; the probability of Mrs. Skaggs’ participation in the trade, etc.
The presumption of the continuance of homestead cannot be invoked until it be shown to have existed. The cases, ■ therefore, of Gouhenant v. Cockerell, and Sylvan v. Coffee, do not apply.
The case of Baird v. Trice, 51 Tex., 555, recognizes the superiority of even an attachment lien, as against an intervening homestead, subsequent to the levy, and prior to the sale.
If the land was not homestead at the date of the assign* ment of the title bond to plaintiff, the subsequent occupancy by the defendants would not avoid his lien.
In the absence of any actual residence (or probably of a record destination), what would be a designation or dedication, and whether it exists, are questions of fact and not of law.
What acts short of occupancy in fact will or will not be evidence of a destination; what public or private expressions of intent as to future occupancy as homestead, will make *498the property a home, cannot, as matters of law, be decided. The destination as a fact is to be determined by the jury or court, from the testimony in each case.
[Opinion delivered June 21, 1880.]We consider that there was not necessarily error in the court holding, from the testimony, that the intent to make the place their home, not followed by any actual occupancy, was ineffectual asa destination of it as homestead against the creditor obtaining a lien, knowing the land had- never been so occupied, and ignorant of any intent to constitute .it a homestead at the date of his lien. Thompson on Homestead, §§ 244, 245, 255.
Finding no error, the judgment below should be affirmed.
Affirmed.