
    Ayers et al. v. Shackey.
    
      (No. 1597.)
    Homestead.—May curtail by devoting a portion of it to other purposes without absolutely parting with the title.
    Appeal from Washington county. Opinion by Delaney, J.
    Statement. — There is but one question in this case: whether or not appellees abandoned the homestead. The facts, in substance, are these: Appellees acquired the property as their homestead in 1870, and lived upon it until some time in 1876. It consisted of a part of a city lot, fronting sixty feet on one street and ninety feet on another. Appellee, some time in 1876, made a contract for the erection of three store-houses on the lots, which were completed late in that year. These houses covered the entire front on one street, and left- á strip of ground fronting thirty feet on the other street, and running back sixty feet. Soon after completion, the building farthest from the front of the smaller lot was sold. Before these houses were put up appellees’ dwelling and improvements were removed and the shade trees cut down. • Appellees lived a short time in a rented house in town, and then resided in the. country with the wife’s relations. They stated their purpose to be to rent the stores until they were able to build a dwelling upon the vacant lot. Treating these facts as an abandonment, appellants present these propositions: 1. A homestead is lost by its abandonment, although a new homestead is not acquired. 42 Tex., 195. 2. The homestead is determined by the character of its use. 59 Tex., 82; 57 Tex., 614. 3. The use of the premises for'the support of the family does not of itself make it a homestead. 48 Tex., 230. 4. The husband and wife may curtail the homestead by devoting a portion of it to other purposes without absolutely parting with the title. 47 Tex., 365; 40 Tex., 440; 59 Tex., 32.
   Opinion.— Held, these propositions are indisputable, yet the evidence of abandonment “must be undeniably clear, and beyond almost the shadow, at least of all reasonable ground, of dispute.” 20 Tex., 96. If the head of the family, with the consent of his wife, given in any manner prescribed by law, shall permanently devote a part of the residence to purposes other than those of a home, the part so appropriated and used would lose its exemption.

The court erroneously charged the jury that when “ property once becomes the homestead, so long as it so remains the husband cannot, by building houses thereon, so separate a portion of it as to subject it to forced sale, as that would be doing indirectly what he could not do directly,” as this charge was not applicable to the facts.

Reversed and bemandeb.  