On Motion for Rehearing.
The appellee attacks the original opinion, first, insisting that we erred in holding that the testimony is insufficient to establish the defense that the property in question was the homestead of Smith and wife at the time the lien attached, insisting that because it was conceded that Smith and wife had previously occupied the premises in question as a homestead, the presumption should be indulged that this situation continued to exist and the mere fact that there was evidence of abandonment created an issue of fact to be determined by the trial court.
While there is a presumption that property once occupied as a homestead continues to be the homestead of the occupant, it is merely a rebuttable presumption of fact and is classed with those presumptions which disappear when confronted with facts. American Central Ins. Co. v. Heath, 29 Tex. Civ. App. 445, 69 S. W. 235. No presumption can be indulged in opposition to facts which show that the fact sought to be established by presumption can have no existence (Largen v. State, 76 Tex. 323, 13 S. W. 161), for the reason that presumptions are never indulged against proof but only in the absence of it and canno.t be indulged against unimpeached positive evidence to the contrary (Paxton v. Boyce, 1 Tex. 317, 324; Moore v. Supreme Assembly, 42 Tex. Civ. App. 366, 93 S. W. 1077, 1079). In addition to the positive, uncontra-dicted testimony of both Smith and wife that they moved out of the house on September 1, 1928, which was more than a year prior to the time the paving certificate was issued in July, 1930, it was shown that the property was sold by the trustee under the deed of trust held by the Wichita Palls Building & Loan Association on August 30, 1931. They testified that the sale resulted because of their inability to make the monthly payments.
In Morris v. Balkham, 75 Tex. 111, 12 S. W. 970, 971, 16 Am. St. Rep. 874, Judge Gaines, referring to the property in litigation, said that it had been a homestead, but Mrs. Balkham testified that 'before the sale was made she and her husband had abandoned the premises as a place of residence and had moved to San Antonio with the intention never to return to it. “This evidence was uncontradicted, and hence the court did not err in holding that it had ceased to be a homestead.”
*720 In the instant case both Smith and wife testified to the same effect. The question of abandonment of a homestead is primarily one of intention and certainly Smith and wife were better qualified to testify as to their intentions in moving out of the house than any other witness who could have been introduced, and their uncontradicted testimony overcomes any presumption which might have arisen from the fact that they once occupied the premises as a homestead. Appel-lee insists that bearing out their contention that the property was the homestead of Smith and wife on December 10, 1929, they have the direct assertion of J. B. Coe, the lumber man, that this property was Smith’s homestead on December 10, 1929. Coe later qualified his statement by the further testimony that he presumed it was Smith’s homestead and gave it as his opinion only. He did not deny the fact testified to by Smith and wife that he refused to permit them to sell the place or that they moved out of the house and into premises on Harrison street in September, 1928. His testimony has no probative value whatever.
They further insist that the fact of homestead is sustained because there is no proof that Smith and wife have ever acquired any other homestead. We discussed that contention in the original opinion and it is too well settled to require further discussion that a homestead may be abandoned by moving therefrom with the intent never to occupy it again as a homestead, whether or not another homestead is ever acquired. Llewellyn et ux. v. First National Bank of Lampasas (Tex. Civ. App.) 265 S. W. 222; Hudgins v. Thompson, 109 Tex. 433, 211 S. W. 586 ; Gross v. White (Tes. Civ. App.) 67 S.W.(2d) 895. Nevertheless, the testimony shows that immediately upon abandoning the property in controversy, Smith and wife leased a home on Harrison street in Amarillo and it is settled law in Texas that homestead rights attach to leased premises. 22 Tex. Jur. 243, § 169.
The appellees further contend that the only testimony tending to show an abandonment of the homestead being that of Smith and wife, only an issue of fact was raised because they were interested parties.
At the time they testified, their homestead had been sold by the trustee as herein-before stated. We cannot assent to the insistence that they were interested witnesses or parties. It is true they were nominal parties, but according to the appellant’s statement in open court a nonsuit and dismissal was taken as to them and they ceased to be real parties. They had no interest whatever in the property and, while testifying, they were neither parties nor interested witnesses.
In Grand Fraternity v. Melton, 102 Tex. 399, 117 S. W. 788, Judge Brown announced the rule that while the jury are the judges of the credibility of witnesses, they have no right to arbitrarily reject the evidence of an unimpeachcd witness against whom there is no discrediting fact or circumstances and they could not lawfully deny proper weight to undisputed facts with no suspicion cast thereon. This rule has been quoted and approved many times since.
In Trinity Gravel Co. v. Cranke, 282 S. W. 798, the Commission of Appeals stated that the trier of facts cannot deny proper weight to undisputed testimony of even an interested party when no suspicion is cast on it by other facts in the case. To the same effect is Malone v. National Bank of Commerce (Tex. Civ. App.) 162 S. W. 369. If we are correct in saying that Smith and wife were neither parties nor interested witnesses, then the rule is that the jury must accord to their uncontradicted testimony verity. Albright v. Smith (Tex. Com. App.) 288 S. W. 178; Smith v. Allbright (Tex. Civ. App.) 279 S. W. 852; Modern Woodmen of America v. Baker (Tex. Civ. App.) 56 S.W.(2d) 891; Texas & N. O. Ry. Co. v. East (Tex. Civ. App.) 57 S.W.(2d) 175.
If it be admitted that Smith and wife were interested witnesses, their interest arises from the fact that property which had previously been their homestead was involved and the rule is announced that the jury cannot arbitrarily reject affirmative, uncontra-dicted testimony of witnesses when the same is against their interest and return a verdict contrary thereto. Trice v. Bridgewater (Tex. Civ. App.) 51 S.W.(2d) 797. Of course, the court as the trier of facts is bound by the same rules which govern the discretion of the jury. We therefore overrule this contention of the-appellee, because there is no testimony tending to establish the fact of homestead claimed by the defendants.
We think we have sufficiently disposed of the remaining contentions in the original opinion and, after a careful review of the record, have concluded that the motion is without merit. It is accordingly overruled.