1. The plaintiff assigns for error the ruling of the court, that the premises conveyed to Grower did not, at the time, constitute a homestead. The evidence upon which the finding of the court was based, is all contained in the record. It does not show that the wife and children of the plaintiff resided with him upon the premises at the date of the deed. They had not, at the time, arrived from the east. One of. the witnesses thinks the house was not built on the lots at the date of the deed. Another witness, however, says that the plaintiff occupied the premises from October, 1855, and the deed to Grower recites- that they are “the same premises on which I now reside.” This, we think, is conclusive of the fact that plaintiff resided on the premises at the date of the deed. It must operate in a manner as an estop-pel on the defendant to deny the fact of such residence. He lived upon the jaremises with his housekeeper, awaiting the arrival of his wife and children from the east. The inference we think is a natural one, that he considered it as his house. There is nothing from which it can be concluded that he *56deemed Ms home to be in. Massachusetts. His remarks to the witness, Gravey, that his wife chose to remain with the children in that State, where she had a home; that he wished her to come on, but that she did not care to do so, and that he expected to have to go back to Massachusetts, are not inconsistent with the fact that the plaintiff had chosen the premises in controversy for Ms home, and that he was preparing it for the reception of Ms family, on their arrival from the east. The assent of the wife was not necessary to the act of the plaintiff fixing his homestead. He could change his homestead without her assent. If adopted as his home, the absence of his wife did not make it any the less his homestead.
Nor does the language of the plaintiff at the time of making the deed,, disclaiming that the premises were his homestead, solve any difficulty in the case. If the premises had been selected and adopted by the plaintiff as the appointed home of Ms family, although he might exchange the same for another, he could not, without the concurrence of his wife, convey the same away. The evidence does not show that at the time of the conveyance the plaintiff had any design of changing his residence to Hardin county. What he said about having made improvements there, and of his design to remove there, was long afterwards. We are therefore of opinion that the court ruled incorrectly upon the testimony, in its decision that the premises were not a homestead.
2. The plaintiff likewise assigns for error the ruling of the court that the plaintiff’s right of possession expired upon the execution of the sheriff’s deed to Dunsmore and Chambers. The plaintiff, with his family, abandoned the possession of the premises in November, 1857, and the defendant took possession in December following. The plaintiff now sues to recover the possession. Had he remained in posses-sio nhe might have defended his right thereto against all persons not showing a better title than Mmself. Having abandoned the premises, however, he labors under this disadvantage at least, that he must show not only a better right than *57the party in possession, but abetter right than tbe title. Such party may plead as outstanding title in some other person. As between the plaintiff and the defendant, the plaintiff was entitled to recover on his better title. The defendant, however, relies on an outstanding title in Dunsmore and Chambers better than the plaintiff’s. He claims that by virtue of the sale of the premises under the decree of foreclosure, and the conveyance by the sheriff to the purchaser, that the interest of the plaintiff in the premises was determined. Was he entitled to rely on this fact to defeat the plaintiff’s right of recovery? We think not.
It is alleged in the replication of the plaintiff to the defendant’s answer, that “ the defendant is a mere intruder upon the premises, and obtained possession thereof by fraud, force and violence, and holds the same fraudulently, forcibly and violently, against the rights of the plaintiff.” The evidence tends strongly to support this position. The house was opened in the absence of the plaintiff, and taken possession of by Swetland, the defendant. No license or authority for thus taking possession, is shown. One who is in possession as a mere trespasser' or intruder, can not protect himself by setting up an outstanding title in a stranger. Perryman v. Callison, 1 Overton 515; Duncan v. Harder, 4 John. 202; Livingston v. Walker, 7 Cow. 637; Bogert v. Schanber, 7 Cow. 187.
Swetland was perhaps at the time claiming title to the premises by virtue of his deed from Grower. But by whatever title he claimed to take possession, it was without the consent of the plaintiff and without process of the law. Under the circumstances he was but a trespasser, and was not entitled to show an outstanding title in Dunsmore and Chambers better than that of the plaintiff.
The counsel have discussed other questions, and among them the question whether the deed of Williams to Glower was a mortgage, and whether the recording of the bond given by Gower to Williams was notice to the defendant. As we are of opinion the deed from Williams to Gower conveyed *58no title, it becomes unnecessary for us to notice tbe points made by the counsel.