Fort v. Powell

Watts, J. Com. App.— It appears that appellant had owned the property for about eight years at the time it was sold by the sheriff, and during that time he is shown to have been upon the premises' with his family about three days only. For a considerable part of that time, it appears that he resided upon the farm belonging to his second wife, but claims that he intended to make the property in controversy his permanent home in the event that he did not sell it. And it appears that, during the time he was residing on the farm with his family, he was offering the property in controversy for sale, and at one time entered, into a contract of sale, which failed [322] because the other party could not raise the money. Taking appellant’s own evidence as to his intention with respect to this property, and it amounts to no more than an indeterminate intention to make the property his homestead at some time in the future* provided it suited him to do so. While it is necessary to clothe property with the homestead character that the owner should intend it as such, that intention, unaided by some use of the property as a homestead, does not have that effect: the two must concur; the intention and use are indispensable. In this case the evidence fails to show that definite, certain and fixed intention to make the property his homestead that would be- requisite to constitute it such, in the absence of such occupancy as would at least indicate to the public the «homestead character of the property. Even if we should gi\e the appellant the benefit of the most liberal construction to udiich the evidence is subject, still there is a want of intrinsic force in the evidence to establish such intention and occupancy as would invest the property with the homestead character. And if appellant had moved upon the land after the levy was made, and had continued that occupancy until this suit was instituted, such occupancy would not. have affected the title of the purchaser at the sheriff’s sale. Gage v. Neblett, Texas Law Reporter, vol. 1, p. 436; Gaines v. Nat. Exchange Bank, Law Reporter, vol. —, pp. 484, 485. We conclude that the judgment is fully supported by the evidence, and that it ought to be affirmed. Affirmed. [Opinion approved April 27, 1883.]