Mr. Justice Terry concurred.
In Cooke v. McChristian, and Taylor v. Hargous, we attempted to give such a construction to the homestead law of this State as would reconcile some of its imperfections, but with no hope that we would be successful in establishing any rule which could be applied to all its absurdities and contradictions.
It was the earnest desire of this Court that the Legislature would have passed some act relieving these cases from the embarrassment which surrounds them, and establish this class of titles upon a well defined and substantial basis. Neither the wishes of the Courts, or of the Bar have, however, been realized in this respect, and we are left to determine each case upon its individual merits.
The conclusions drawn from the cases already decided are: First, that the homestead is the family residence, and in order to constitute a homestead, there must be an actual occupancy, with the intention of *236dedicating the premises to such purpose.. Second, that residence is prima facie evidence of such intention, and imparts notice. Third, that when the premises have acquired the character of a homestead by actual occupation, with that intention, the estate thus created cannot be destroyed, except by the concurrence of both husband and wife j neither will their removal from the premises operate as an abandonment. Fourth, that the question of homestead is a question of fact, and the presumption arising from residence may be defeated by facts and circumstances aliunde.
Apply these principles to the present case. It appears that Holden and Green held the lot in question, as joint tenants, up to the 17th, on which day Green quitclaimed to Holden, and that the premises were destroyed by fire on the 18th. Under our previous decisions, the residence of Holden upon the lot, so long as it was held in joint tenancy, did not qualify the possession, or give to it the character of a homestead, and his actual residence upon the lot at the time when it was susceptible of receiving that character, by reason of the title being in him, was less than twenty-four hours. It then became necessary to determine (this occupancy, short as it was, having raised the presumption of dedication,) whether there had in fact been a dedication, and whether such was the intention of Holden. For this purpose, it was proper to inquire as to the character of the building destroyed, whether a dwelling-house or not. The fact that a new house was afterwards erected, which was regarded as the family residence; that no steps were taken to restore the former building, or to return to the locality; these questions appear to have been before the Court below, and to have been passed on. In addition to all this, the appellant is concluded by her own acts in the Court below. It is not shown that she did not authorize the attorney to appear for her, or that he is insolvent; on the contrary, she appears to have acquiesced in the decree, and to have accepted the stipend allowed by the Court for some eighteen months. To say the least, her application to have the lot 82 set apart as a homestead, comes, at this time, with a bad grace, and is devoid of equitable consideration. From an examination, we are satisfied that she has received even more than in strict law she was entitled to, and has therefore no reason to complain.
Judgment affirmed.