(after stating the case as above).
It is insisted by the appellant that the evidence conclusively established that the portion of the lot on which the smaller house' was located was not exempt from forced sale as a part of the homestead, but was subject to seizure and sale. It is well settled that one may as absolutely and clearly abandon a portion of a lot which constitutes the homestead, if the same be done in good faith, by acts certainly evidencing such purpose, as he may abandon the entire homestead by ceasing to use it and never again occupying it as such. But the question is one of intention, to be gathered in each case from all the facts and circumstances. In the present case, considering all the facts and circumstances, it is believed that it may not be held as a matter of pure law that the appellee intended abandonment or discontinuance of use of the southeast portion of the lot for any homestead purpose. As appears, the appellee purchased the property as “a lot in the city of Mt. Pleasant,” and there would be imputed to him the intention; in the absence of evidence to the contrary, to dedicate the entire lot to homestead use. The quantity of the property so purchased is entirely within the constitutional limit of a homestead. There were two houses upon the lot, about eight feet distant from each other; and at the time of the purchase of the lot the appellee and his wife immediately began the actual use and occupancy of the larger house. They also used the garden and the barn lot. But the smaller house, being at the time of the purchase rented, continued to be occupied by the tenant until the levy of the attachment on March 14, 1927, some three months after the date of the purchase. As explained, however, by the appellee, the renting of that house to the tenant was intended to be a temporary matter until such time as he could obtain money with which to consolidate the two houses into one building. His purpose in consolidating the two buildings into one was to add more room for boarders and roomers. And as acts of preparation therefor, as further appears from the evidence, the appellee and his family “discussed about consolidating the two houses,” and the appellee “talked to Mr. Arthur Mitchell” about borrowing the money to pay for the required work and cost of uniting the two buildings. Thus there appears the fact of the actual occupation of the greater portion of the lot and the fact of expressed intention and some effort of preparation of occupancy of the smaller portion. In these circumstances the appellee was entitled to a reasonable time after the purchase of the property within which to take over the actual occupancy of the smaller house by uniting it with the larger one as proposed to be done by him. After the levy of the attachment, and throughout the time of the litigation, the cessation of the preparations to unite the two houses could not be accounted as a conclusive act of abandonment or discontinuance of homestead claim in the smaller house, as the appellee had the right to await the termination of the litigation in respect to the homestead claim. The abandonment of intention of actual occupancy of the smaller house could not be predicated, therefore, conclusively and unmistakably, merely upon the temporary renting as here shown for some three months’ time before the levy of the attachment. The portion of the lot on which the smaller house was located was not made a distinct and separate part of the entire lot by a division fence, as appears in the following cases: Andrews v, .Hagadon, 54 Tex. 671; Oppenheimer v. Fritter, 79 Tex. 99, 14 S. W. 1051; Adkins-Polk Company v. Rhodes (Tex. Com. App.) 24 S.W.(2d) 351. In the case of McDonald v. Clark (Tex. Sup.) 19 S. W. 1023, the renting of the house was of a permanent and not temporary character. The factual element of permanent renting differentiates that case from the present one. It could be said as a matter of fact in the present case that the renting of the house was merely temporary, and that discontinuance or abandonment of use for any homestead purpose was not intended.
The judgment is therefore affirmed.