On Motion for Rehearing.
The conclusion of this court that the 3 acres off lot 12 were within the corporate limits of McAllen is assailed as being incorrect, and a sketch is inserted in the motion to demonstrate the error. It demonstrates the correctness of the conclusion. Appellees say:
“It is true the corporation line of the city of McAllen, what the witness called ‘an imaginary line,’ did at the' time appellees bought said lands run north and south across lot 12 so that 3 acres thereof lay west and within the limits of the corporate jurisdiction of the city of Mc-Allen, but'said 3 acres were not in fact within the city or town of McAllen.”
*1059In other words, the 3 acres were within the city limits, but they were not within the city. This is a subtle distinction that we are unable to draw.
The trial judge found tha.t when appellees bought the property two-thirds of lot 12 and all of 11 were outside the city limits, and that appellees bought in addition another acre of land in the city adjoining that part of 12 in the city, which according to the finding of the court gave- appellees -a acres of land in the city of McAllen, which is rather a large homestead in a city. Appellees built on the city part of lot 12, and established a mercantile business in the city, but because a portion of the two lots had been used for farm or nursery purposes' the claim is made to a homestead consisting of 22 acres of land lying partly in the city and partly in the country. This was the status of the property when the homestead was established, Mrs. Jones swore:
“Three acres of this place, that is, the front 3 acres, is in the city limits and was within the city limits of McAllen at the time we. purchased it. The house we lived in is within the city limits.”
Of the same tenor was the evidence of Charles Jones.
The contention as to the 3 acres in the town becoming a part of a rural homestead is based on the theory that when a party purchases a tract of land, which is a farm, lying partly in a city and partly in the country, all of the tract is a rural homestead, and may be claimed as such up to the limit of 200 acres. Great stress is put on the fact that the portion of lot 12 lying inside the city had not been laid off into lots, and probably it never would be laid off into lots if owned by one person. Still it was within the city limits, and under the jurisdiction and control of the city government. Because a piece of land is in a city, has never been laid off into lots, and has never been cleared of the brush, would not make it rural property because it is a part of a larger tract lying outside the city. Nor would the fact that the part inside the city and the part outside the city formed at the time it was sold the homestead of the vendor make it the rural homestead of the vendee. Homestead rights cannot be conveyed by a deed, but each head of a family must make the homestead for the family, and the status of the land when he designates the homestead gives character to the homestead. If it is in a city, it is an urban homestead; if in the country, it is a rural homestead. Any other theory might create the situation of men living all around the limits of cities with their homes and farms on the outside and all the property both in and out the city exempted from the payment of debts. This court will not voluntarily subscribe to any such doctrine.
None of the cases cited as that where the homestead had been acquired after rhe city limits had been extended so as to include part of a rural homestead. In the case of Paris Exchange Bank v. Hulen, 21 Tex. Civ. App. 285, 52 S. W. 278. the facts fail to show that tlie land when bought by Hulen was partly within and partly without the city. On the other hand, it might be inferred that the land was outside the city when Hulen bought it. We infer this from the fact that the court cites oases altogether in which the homesteads had been established and after-wards while the owners were claiming the homesteads when the city limits were extended so as to include them within the city. We have seen no case that holds that, when homestead rights have been established on a tract of land, they will be transferred by a conveyance of the land.
The motion is overruled.