On Appellee’s Motion for Rehearing.
In his motion for rehearing, in addition to his insistence that his lien, by virtue of the partition deed, extended to and covered all of lots 4 and 5, appellee urges: (1) That since the evidence showed that Pyland had abandoned any homestead claim to at least a part of lots 4 and 5, as to such abandoned portions the trial court’s judgment should be affirmed; and (2) that his cross-assignments of error, that the trial court erred in refusing to sustain his general demurrer and special exceptions setting up the insufficiency of Pyland’s pleas of homestead, should have been sustained.
By both pleading and proof in the court below appellee sought to establish and foreclose his lien on the entire property on two grounds: First, that his lien existed on the whole property under the facts pleaded, regardless of any homestead character of said property; and, second, that by the conveyance to their sons and the registration of that deed, S. J. Pyland and wife abandoned their entire homestead interest in said property. Nowhere do we find any pleading that the Pylands had abandoned a part of said property as their homestead by renting or non user thereof as such. While there was testimony from which the court could have found abandonment of a part thereof as homestead, his judgment was ’not based upon any such finding; and if sustainable as to part, the proof was not sufficiently clear and explicit as to such portion here claimed to have been abandoned, that this court could properly segregate it. Nor can we say, in view of the theory on which the case was tried below, that there was conclusive proof of abandonment to a definite portion of said property. See 22 Tex.Jur., § 77, p. 111.
Appellants’ plea of homestead was, we think, sufficient as against tlie exceptions made. In general, appellant pleaded that he was 64 years of age, with a wife and family; that he had for 30 years used and occupied these premises in conducting his business, describing it; that said property was adapted to that purpose; that he had no other place or way in which he could earn a livelihood; and that he had had during such period, and now has, no other place of business in San Marcos or elsewhere. Such allegations were, we think, sufficient allegations of facts to meet the rules of pleading of homestead exemption laid down in 22 Tex.Jur., § 18, p. 34. •
Appellee’s motion is therefore overruled.
Overruled.