OPINION ON REHEARING.
Henry M. Griffin’s interest inherited through his mother in the 328 acres of land was one-sixteenth, or 20% acres. The year he was adjudged a lunatic he was cultivating 40 acres of the 328 acres, an excess of 19% acres over the interest owned by him. For this excess he paid rent to his father. The records of the Probate Court in the matter of the guardianship of Henry M. Griffin, showed that when the motion was made to require the guardian to inventory this land the guardian resisted, setting up that it was the homestead of herself and child. The estate of the lunatic, excluding the homestead from the assets, is and always has been insolvent. When J. W. Harris purchased the property he knew that Henry M. Griffin lived upon the land with his family, and had his household and kitchen furniture, tools and farming implements thereon, and that he owned no other homestead. J. W. Harris is the father of the guardian, Mrs. Griffin. .
The statement in the opinion that “the County Court records did not affirmatively show that the land was not the homestead of Henry M. Griffin,” is liable to be misunderstood. By this we meant to say that the records did not show that the question of homestead vel non had been passed upon by that court. It is true the court ordered the guardian to inventory the property, but this did not affirmatively adjudge that it was not the homestead. The records did show that the guardian at the time the motion to require it to be placed on the inventory was heard, claimed and plead that it was the homestead of herself and child. The record in this respect is similar to that passed upon in Hamblin v. Wernecke, 31 Texas, 94, and it was there held that the records of the County Court showed the property was homestead. It was shown on the trial that the land has been in the possession of J. P. Griffin, the father of Henry M. Griffin, since the purchase by J. W. Harris, and that the rent of the property during such time was of the value of $80, and J. W. Harris recovered judgment for that amount. In the opinion nothing was said as to rents, but the judgment was here rendered for appellant for the land and $80 rent.
The motion for rehearing is overruled.
Overruled.
Writ of error refused.