
    (109 Tex. 466)
    HENDERSON v. TEXAS MOLINE PLOW CO. et al.
    (No. 2705.)
    (Supreme Court of Texas.
    May 14, 1919.)
    1. Homestead <&wkey;162(l) — Abandonment—Intent to Return.
    While property did not lose its homestead character until the discontinuance of its use, coupled with an intention not to again use it for the purposes of a home, yet, upon the owner’s having such bona fide intention not to return, property would immediately become subject to the payment of his debts.
    2. Homestead <&wkey;112 — Passing oe Title — ■ DELIVERY.
    Where it was always stipulated that title was to. pass only through mutual deeds, the title to homestead property did not pass until delivery of deeds.
    3. Homestead <&wkey;216 — Transfer oe Homestead-Construction of Jury’s Finding.
    In view of the trial court’s instruction that the sale was made when the essential elements of the deal were agreed on and the papers prepared, the only thing undone being the passage of the title papers, a jury’s finding that property was the homestead of R. when sold to G. meant no more than that it was such homestead on or about the time when the exchange deal was agreed on and the deed to G. prepared.
    Error to Court of Civil Appeals of Second Supreme Judicial District.
    Suit by W. H. Henderson against the Texas Moline Plow Company and others to enjoin the sale of property under an execution and levy. A judgment- was rendered for plaintiff, and the defendants appealed to the Court of Civil Appeals, which reversed and rendered judgment for defendants (168 S. W. 414),- and plaintiff brings error.
    The judgment of the district court for plaintiff, and the judgment of the Court of Civil Appeals against plaintiff and in favor of defendants, both reversed, and the cause remanded for a new trial in the district court.
    Scott & Brelsford, of Eastland, for plaintiff in error.
    D. M. Oldham, Jr., of Abilene, for defendants in error.
   GREENWOOD, J.

On July 15, 1907, defendant in error Texas Moline Plow Company recovered a judgment in the district court of Eastland county against T. B. Roberds and others for $3,631.79, which is credited with payments of $503.60 on November 5,1907, and of $200 on May 7, 1912. This judgment was' duly abstracted in Eastland county on July 6, T-908. ■:

Since prior to the date of the judgment until November, 1910, T. B. Roberds and family occupied as their residence'homestead a certain improved lot in the town of Rising Star, in Eastland, county. Having been elected county tax assessor in November, 1910, T. B. Roberds then moved with his family to East-land, and since that time there has been no actual occupancy of the Rising Star property by any of the family of T. B. Roberds.

It is undisputed that until the November ejection, 1912, when T. B. Roberds was reelected county tax assessor, it was his fixed intention to again use the Rising Star property as the family home, at the expiration of his term of office.

On or ábout the date of the election in November, 1912, T. B. Roberds and W. D. Gry-der agreed to an exchange of the Rising Star property, belonging to Roberds, for a farm in Eastland county belonging to Gryder. With a view to accomplishing this exchange, T. B. Roberds, on November 12, 1912, signed and acknowledged a deed to the Rising Star property from himself and wife to W. D. Gryder. The deed was not signed by Roberds’ wife because she was then on a visit to Arizona* where she was joined soon' after the date of the deed by T. B. Roberds.

About December 6,1912, T. B. Roberds purchased for $1,000 the improvements' on 320 acrés of government land in Arizona, and filed his application to purchase same under an act of Congress, stating under oath that the application was made in good faith to .obtain a home for himself.

On December 12,1912, Roberds’ wife signed and acknowledged the deed to Gryder to the Rising Star property. On January 3, 1913, the exchange between Gryder and Roberds was consummated by the delivery to Gryder of the deed to the Rising Star property and to Roberds of the deed to the Eastland county farm. The deeds were exchanged, by agreement of the parties, through Joe Bur-kett, who received the deed to Gryder about January 3, 1913, and who received the deed to Roberds some two or three weeks previously.

The evidence was undisputed that when the exchange was agreed on Roberds intended to make his home on the 169 acres he was to get from Gryder, upon the expiration of-his 'term of Office. There was abundant, though not conclusive, evidence that after November 15, 1912, and prior to January 3, 1913, T. B. Roberds had determined to make his home on the 320 acres in Arizona, and had formed the definite intention, with the concurrence of his wife, not to again use the Rising Star property as his home.

- On April 26, 1913, an execution, issued on the judgment in favor of the Texas Moline Plow Company against T. B. Roberds • and othérs, was levied on the Rising Star property, which had been conveyed by W. D. Gry-der to plaintiff in error W. H. Henderson, who thereupon brought this'suit-to enjoin the sale of said property under said execution end levy, under averments that the property had continued to be the homestead of T. B. Roberds until the title passed from him to W. D. Gryder, and that, since this fact did not appear of record, the execution sale would cast a cloud on the title acquired by plaintiff in error under Gryder.

Defendant in error Texas Moline Plow Company denied the averments on which plaintiff in error relied for the injunction, and pleaded an abandonment of the Rising Star property as the homestead of T. B. Rob-erds before he parted with the title to same, and prayed for judgment foreclosing the lien claimed to have been acquired on said property by the record of the abstract of the judgment.

The case was submitted on special issues, the jury finding as follows: First, that the Rising Star property was the homestead of T. B. Roberds and wife at the time of its sale to W. D. Gryder, the jury being instructed that the sale was. made when the essential elements of the deal were agreed on and the papers prepared, with the only thing undone being to,pass the title papers; second, that the Rising Star property was abandoned as a homestead by T. B. Roberds on or about November 12, 3912, the jury being instructed that Roberd’s temporary removal to the county seat, after his election, with the intention of returning to the Rising Star property on the expiration of his term of office, would not constitute an abandonment of ■ this property as his homestead, but that it would constitute an abandonment of the homestead for Roberds to acquire a new homestead in the county seat, or for Roberds to remove to the county seat with no intention of returning to his former homestead at the expiration of his term of office; third, that T. B. Roberds formed the intention of acquiring a homestead in Arizona on or about December 6, 1912; fourth, that the deed of T. B. Roberds and wife to W. D. Gryder was delivered on or about January 3, 1913; and, fifth, that the statements in the application of T. B. Roberds to purchase the 320 acres of land in Arizona, on or about December 7, 1912, were true at the time they were made.

On these findings the trial court gave judgment for plaintiff in error, enjoining the sale of the Rising Star property under the judgment of the Texas Moline Plow Company. This judgment is based on the jury’s first finding, construed as meaning that Roberds had not abandoned the Rising Star homestead at the date on which it was conveyed to W. D. Gryder,

The Court of Civil Appeals reversed the trial court’s judgment and rendered judgment for defendant in error, holding that, in the light of the court’s charge, the findings of the jury showed an abandonment of the Rising Star homestead by T. B. Roberds prior to January 3, 1912, and that, no sale of the homestead having been made prior to that dace, the judgment lien attached and should be enforced. 168 S. W. 414.

The law is peiffectly plain that the residence of T. B. Roberds at Rising Star did not lose its homestead character until the discontinuance of its use was coupled with an intention not again to use it for the purposes of a home. Archibald v. Jacobs, 69 Tex. 251, 6 S. W. 177, Hudgins v. Thompson, 109 Tex. -, 211 S. W. 586. T. B. Roberds could not, however, have the bona fide intention not to return to the Rising Star property, without immediately subjecting same to the payment of his debts, including the duly abstracted judgment of the Texas Moline Plow Company. Woolfolk v. Rickets, 41 Tex. 362, Tackaberry v. Bank, 85 Tex. 493, 22 S. W. 151, 299.

Under the undisputed facts, title to the Rising Star property.did not pass from Rob-erds until the deed to Roberds and wife was delivered to Gryder. Croom v. Cotton Co., 15 Tex. Civ. App. 328, 40 S. W. 147. It was always stipulated that the title was to pass only through mutual deeds.

The case presented a single and simple issue, to wit, was the property in controversy abandoned by Roberds as a homestead prior to his exchange of deeds with Gryder?

It would have been impossible for the jury to have understandingly found that the Rising Star Property was abandoned as the homestead on or about November 12, 1912, and yet that it was the homestead when sold to Gryder on or about January 3, 1913. There is no difficulty in determining that the jury meant no more by finding that the Rising Star property was the homestead of Rob-erds when sold to Gryder, than that it was such homestead on or about November 12, 1912, when the exchange deal was agreed on and the deed to Gryder was prepared. The court’s definition of a sale forbids that we give any other meaning to the finding.

But we cannot agree with the Court of Civil Appeals that, having given this meaning to the jury’s first finding, the others entitle the Texas Moline Plow Company to have judgment entered enforcing the asserted judgment lien. The entry of such judgment is to give conclusive effect to an apparent but not a real finding against plaintiff in error on the controlling issue in the case. Just as defendant in error the Texas Moline Plow Company is entitled to have us construe the jury’s first finding in the light of the entire charge, so is plaintiff in error entitled to have us construe the other findings in the same light. And', when we look to the court’s instructions on the law of homestead abandonment, we find it is impossible to adopt the jury’s findings in response thereto as a fair or just basis for subjecting the Rising Star property to the payment of defendant in error’s judgment. For the jury were explicitly told that, to constitute an abandonment of Roberds’ homestead at Rising Star, he must have acquired a new homestead in the town of Eastland, or he must have moved to that town with no intention of returning to his Rising Star homestead when his official term expired, and the evidence was uncontradicted that Roberds did not acquire a new homestead at Eastland, and that he removed there with the positive intention of returning to the Rising Star homestead at the expiration of his term of office. So, while the finding is apparently one against plaintiff in error upon the essential issue of abandonment of the Rising Star homestead by Roberds, such as the facts would have warranted entirely independent of his original intention in moving to Eastland or of his acquisition of a home there, yet it is really nothing more than a finding, utterly without support in any evidence, that Roberds had no intention, when he moved to Eastland, of returning to the Rising Star property, or that Roberds had acquired another home in Eastland. None of the other matters found by the jury can be said to constitute an abandonment in law of the Rising Star homestead. These matters tended to establish an abandonment, but cannot be held to necessarily establish the always essential intention not to again use the Rising Star property for a home, with Rob-erds testifying explicitly that he did not have this intention.

The case may be summarized by the statement that there has been no submission of the real issue between the parties, with -the law of homestead abandonment properly applied to the evidence, and no findings such as ought to be determinative of the rights of the parties.

It is therefore ordered that the judgment of the district court in favor of plaintiff in error, and the judgment of the Court of Civil Appeals against plaintiff in error, be both reversed, and that this cause be remanded for a new trial in the district court 
      ípor other cas.es, see same £opic and KEY-NU in all ¿ey^iyumbered 'Digests and Indexes
     