
    TURNPAUGH et al. v. DICKEY et al.
    (No. 1328.)
    (Court of Civil Appeals of Texas. Texarkana.
    April 30, 1914.)
    Homestead (§ 154*) — Abandonment—Segregation.
    Complainants purchased a triangular piece of ground containing a half acre or less in an unincorporated town, built a house and outbuildings thereon, using it as their home. After the town was incorporated, complainants constructed another house on another portion of the lot and divided the two by a high board fence. The second house was rented from month to month with the intention of removing it to another place thereafter. The lot was never platted or cut into two separate lots, and complainants always reserved the particular premises on which the second house was located for use of himself and' family. Held, that the division of the property by the fence and the construction of the second house did not constitute an abandonment of the homestead character of that portion of the premises so as to render it subject to execution.
    [Ed. Note. — For other cases, see Homestead, Gent. Dig. § 307; Dec. Dig. § 154.*]
    Appeal from District Court, Tarrant County; ■ R. H. Buck, Judge.
    Action by J. H. Dickey and others against J. W. Turnpaugh and others, to set aside a sale, of real property under a .judgment as a homestead. From á judgment for complainants, defendants appeal.
    Affirmed.
    On January 12, 1911, the appellant Turn-paugh recovered a personal judgment against J. H. Dickey for $222.92, with interest and costs. An abstract of the judgment was properly recorded. On January 17, 1913, an alias execution was issued on the above judgment and levied on certain described land of ap-pellee Dickey, and appellant Turnpaugh, the execution creditor, became the purchaser under the sale. Claiming that the land so sold was their homestead, appellee and his wife brought .this suit against the purchaser and the sheriff to set .aside said sale and cancel the deed made thereunder. Besides the plea of denial, the appellant, in affirmative plea, prayed that the court foreclose his judgment lien on a specifically described portion of the land, claiming' tile same liad been segregated .before tbe sale from tbe remainder of tbe borne and abandoned as a part of tbe original homestead. Tbe case wa s tried to tbe court without a jury, and judgment was entered in favor of plaintiffs for tbe land.
    Tbe evidence establishes that in 1902 ap-pellee J. H. Dickey purchased a tract of land, in triangle shape, of a half acre or less, out ■of tbe J. Van Rupper survey, and located near tbe Polytechnic College in Tarrant county. Polytechnic was not incorporated, as a town at tbe time of the purchase, but has since, at some date not given, been incorporated, and at tbe time of tbe trial tbe land in suit lay within tbe incorporate limits of the town. At tbe time of tbe purchase of tbe land, Dickey built a bouse in tbe northeast corner of tbe land, and drilled a well in tbe southern part of the triangle, and moved with his wife and children into the bouse as tbe homestead of tbe family. After moving into tbe house, appellee built a barn, wash-house, a eoalhouse and sheds, and other outhouses shown on tbe plat in tbe record, for family usé in connection with the home. Ap-pellee is a plumber, is actively engaged in that business, and has bis plumbing shop on tbe southwest portion of the lot. During tbe year 1911 appellee’s wife inherited a sum' of money from her aunt, and $1,000 of tbe money was used to erect a small bouse on tbe northwest portion of the lot. An upright board fence was then built between this bouse and tbe residence, which extended in a southerly direction to a point opposite the eoalhouse built some time prior thereto.. There were a gateway and drive, about eight feet wide, on the west and running with tbe cross fence, leading from the street on the north to tbe eoalhouse, and connecting with a gateway at the southern end of tbe cross fence and next to the horse lot. At the south end of tbe cross fence is also tbe washhouse mentioned as having been previously built. Prom' tbe time of tbe erection of the house in 1911 to the trial, the appellee has rented the same to tenants. Tbe testimony, however, admittedly shows that appellee erected this house on tbe lot, intending to keep it there only temporarily until he could purchase another lot and remove it. The house was only rented by the month and tbe right reserved by appellee to terminate the tenancy at the end of any month, and was never rented to any one having live stock, chickens, or children. The driveway was used by ap-pellee as a means of ingress and egress to and from his stock lot on the south of the lot, and the eoalhouse and washhouse were used in common by the appellee’s family and the tenants. The lot had never been platted or cut into two separate lots, and appellee did not intend to do so, and he always reserved the particular premises on which the house last erected was located for the use of himself and his family.
    The evidence supports the finding of fact; as involved in the judgment of the court, that all the premises constituted the homestead of appellee and his wife, and that he did not intend the house to be permanently rented, and had not discontinued the use of any part of the entire lot for any homestead purpose, and did not intend, any discontinuance or abandonment of any .part of the original homestead.
    Wm. Booth, of Et. Worth, for appellants. L. H. Burns, of Et. Worth, for appellees.
   LEVY, J.

(after stating the facts as above). The first assignment predicates error upon the refusal of the court to foreclose appellants’ judgment lien on that part of the original homestead of appellee, as described in appellants’ answer. The judgment of the court involves the finding of fact by him that appellee did not intend to segregate and abandon any part of his original homestead. It is believed that there is sufficient evidence to support the trial court’s finding of fact, and this court would not be warranted in ruling that the trial court, as a matter of law, erred in rendering judgment, for the appellees. In the case of Blackburn v. Knight, 81 Tex. 326, 16 S. W. 1075, relied on by appellants, the trial court there made the finding of fact, as supported by the evidence, that “the defendants, because of the permanent renting of the premises, and of their limiting themselves to the use, and to the right of the use, of the strip of 14 feet, had, before the levy of the plaintiff’s execution, abandoned their homestead rights in all of the lot in controversy except a strip of 14 feet wide along the north side.” Then the court said, “If there be evidence to support the several findings of fact above set out, they will not be disturbed by this court” The other cases cited by appellant also turn on the particular finding of fact in the evidence, as must every case presenting this question.

The judgment is affirmed.  