On Motion for Rehearing.
On motion for rehearing appellees insist that this court has no authority to reverse' and render with regard to the question of homestead, because it is claimed that only Adolph- Seidemann, an interested party, testified as to the use of the lots in connection, with the homestead. But such is not the record, as was pointed out in our original opinion. Adolph Seidemann did testify to certain uses of the lots in connection with the homestead, and others testified as to some of such uses. But we did not ground our opinion upon such testimony alone, but upon the testimony of appellee bank’s officers who negotiated the loan and secured the deed of trust, and who testified that, when the property was offered as security, they suggested that it was homestead, which Seidemann denied; and that they then went out and looked over the premises, and saw the open, visible, and plain uses of the property as detailed in our original opinion. The visible uses testified to by the bank’s officers have been uniformly held to be sufficient to impress the property with the homestead character. The bank’s officers also testified that they had known for many years that the Seidemanns had occupied and used the premises in the condition they saw them. So it is manifest that the long-continued occupancy and use of the property by the Seidemanns was open, notorious, and visible to everyone, and this undisputed evidence brings the case clearly within the rule stated in our original opinion, that “where property is actually occupied for the purpose of a home so as to make it such in law, no representations to the contrary, however made, can work an estoppel.” And, since the bank’s officers actually saw and testified to such open and visible uses of the property, and knew of its actual occupancy by the Seidemanns for many years prior to the taking of the deed of trust, no possible issue of estoppel could arise in their behalf under the rule just stated.
Overruled.