
    [S. F. No. 92.
    Department One.
    March 21, 1896.]
    JOSEPH TROMANS, Respondent, v. HENRY MAHLMAN et al., Appellants.
    Homestead—Residence at Time of Declaration—Question of Fact.— Actual residence upon premises claimed as a homestead, at the time of filing the declaration of homestead, is essential in order to impress the premises with the attributes of a homestead; and such actual residence is a question of fact to be determined by the court from the evidence before it.
    Id.—Elements of Residence—Evidence of Intention—Conflict.—The physical fact of occupancy of the premises claimed as a homestead, and the intention with which they were occupied, are both elements to be considered in determining the question of actual residence; and the court is not bound to accept as conclusive the testimony of the declarant upon the question of intention to reside upon the premises, if other facts testified to are inconsistent with such intention; and in case of such inconsistency, there is a conflict of evidence on which the decision of the trial court is final.
    Appeal from an order of the Superior Court of Alameda County. W. E. Greene, Judge.
    The facts are stated in the opinion of the court and in the opinion rendered upon the fornier appeal, reported in 92 Cal. 1.
    
      B. Percy Wright, for Appellants.
    
      Metcalf & Metcalf, for Respondent.
   Harrison, J.

The facts in this case are set forth in the opinion given upon a former appeal. (Tromans v. Mahlman, 92 Cal. 1.) It was then held that the evidence was insufficient to show an actual residence upon the premises at the time of filing the declaration of homestead, and, consequently, that the premises were not impressed with the attributes of a homestead; and the case was remanded for a new trial. Upon that trial, from which the present appeal is taken, the evidence before the court was substantially the same as upon the former trial, and the decision of the court thereon in favor of the plaintiff was by necessary implication a decision that the evidence did not show such actual residence on the premises; and, under the decision of this court upon the former appeal, the superior court was fully justified in making this finding.

The only respect in which it is claimed by the appellants that the evidence herein differed from that at the former trial to such an extent as to authorize a different conclusion is that Mrs. Mahlman testified that at the time she went to the premises on the 21st of August, 1883, it was her intention to remain there and occupy the house continuously, but that by reason of supervening circumstances she was compelled to return to San Francisco the next day after the declaration of homestead was .filed. Whether she did in fact actually reside on the premises at the time the declaration was filed was a question of fact to be determined by the court from the evidence before it. The physical fact of her occupancy, as well as the intention with which she occupied the house, were both elements to be considered in determining actual residence, and the court was not bound to accept her statement that she intended to reside thereon as conclusive, if other facts to which she testified were inconsistent with such intention. Whatever inconsistency there was between these facts and her statement of her intention presented merely a conflict of evidence, on which the decision of the trial court was final. Its decision upon this conflict of evidence that she did not reside there is conclusive Upon this court. ,

The order is affirmed.

Garoutte, J., and Van Fleet, J., concurred.  