On Motion for Rehearing.
Appellee Davis recognized the fact that the land in controversy was the homestead of the Markleys, and consulted attorneys as to how -the homestead rights could be evaded or destroyed. He tried to obtain Mrs. Mark-ley’s consent to the sale, or rather mortgage, because he admitted a year after the deed was executed that there was no intention to convey the title to him, but that he was merely holding it in trust for Gen. Markley. On October 10, 1916, 13 months after the deed was executed, Davis wrote Gen. Mark-ley:
“Tour farm is as much yours as it has ever been, and has never been regarded by me except as a matter of trust in my hands.”
*1016Afterwards lie not only repudiated tlie trust, but denied the homestead character of the property. He neyer claimed to own the land until the suit was instituted. Gen. Markley swore:
“It is a fact that my sole and only purpose in declaring that I had abandoned the farm was to enable me to destroy its homestead character, so that I could convey it to Davis without my wife joining in the execution of the deed.”
He also testified that he fully intended to return to the farm if his financial condition permitted it. The Markleys had no other home. Appellant had a house in Pennsylvania, which Gen. Markley never entered, and in which appellant lived for a short time in 1908. Appellees contend, however, that a few weeks residence in a house in Pennsylvania by appellant created a homestead, but deny that her residence for several years, with her son, in a house in Texas, could give it a homestead character, although it was bought for a home, and was used by appellant and husband as a home. Davis admitted that appellant claimed the farm as her homestead when he sought to obtain a deed of trust on it. He must have written his attorneys in 1915 that the farm was a homestead, for in replying to his letter they said:
“I understand from you that Mr. Markley now occupies the farm as a homestead, but that his wife has, for several years, refused to live with him on the farm.”
The evidence showed that she had never refused to live with her husband on the farm, and always regarded it as her homestead. She had designated the land as her homestead in writing, and had it recorded in Webb county long before Davis attempted to obtain a mortgage on it from her husband.
The parties had never separated as man and wife, and each of them claimed the property as a homestead.
There is no merit in thé motion, and it is overruled.