9

[ 361] (7) Character of Intent (a) In General. In order to preserve the homestead right it is not essential that its owner on removing therefrom should intend to return at any particular time in the future, nor is it necessary that there should be an intent to return regardless of all possible contingencies. But, if there is an honest belief that at some time in the future he will reoccupy the property as a homestead, and he does nothing inconsistent with such belief and intent, the homestead right is not forfeited by a temporary removal. 10 Nevertheless, as heretofore stated, the majority of decisions either directly or impliedly

prima facie evidence of the owner's intention to return and occupy. On the other hand, the letter of the statute does not deny to the owner, quitting temporarily, any privilege he had previously enjoyed. This act merely states a case in which the owner who quits temporarily, without leasing, shall not lose his exemption. As to him, the letter of the statute declares and reaffirms a right he already had. To his essential rights and privileges it added nothing, though it may have aided him in the proof of them." Fuller V. American Supply Co., 185 Ala. 512, 64 S 549. (10) But the filing of the claim is merely prima facie evidence and not conclusive of the intent to return and in the absence of such intent the filing of the claim will not save the homestead exemption. Beckert v. Whitlock, 83 Ala. 123, 3 S 545. (11) In any event, where the owner of premises rents them out and removes therefrom without previously filing a claim of homestead in accordance with the requirements of the statute, the homestead exemption is abandoned. Smith Lumber Co. v. Garry, 202 Ala. 473, 80 S 857; Cardwell v. Virginia State Ins. Co., 198 Ala. 211, 73 S 466; Bland v. Putnam, 132 Ala. 613, 32 S 616; Land v. Boykin, 122 Ala. 627, 25 S 172; Pollak v. Caldwell, 94 Al. 149, 10 S 266; Murphy v. Hunt, 75 Ala. 438. (12) The statute is not satisfied by the mere lodging of the claim with the sheriff after the levy of process. Murphy v. Hunt, supra.

assert that there must be a "constant and abiding
intent to return," in order to preserve the right."
According to the weight of authority, where there
is no present intention of returning existing at the
time of removal, but a mere possible, or at most a
probable, future purpose contingent upon the hap-
pening or not happening of a certain event, a re-
moval from a homestead constitutes an abandon-
ment thereof;12 and the rule applies to business
homesteads as well as others; 13 but it has been held
in some cases that this rule will not be applied where
he has a present definite intention of returning if
his removal does not prove satisfactory.11

182 NW 702. See Davis v. Neihardt, | to another state, that if he liked the
213 Mich. 95, 181 NW 177 (a tempo- country and could do well in his
rary absence from home does not business he expected to remain. it
render a homestead liable to levy and was held that there was an abandon-
execution on sale where there has ment, although he found it to his in-
been a continuing good faith intent terest to return. Cabeen v. Mulligan,
to return and occupy it as a home- 37 Ill. 230, 87 AmD 247. But see in-
stead).
fra note 14 [a]. (4) Within a statute
providing that, when one shall cease
to reside on his homestead, it shall
be liable to his debts, unless his re-
moval is temporary, by reason of
some casualty or necessity, and with
the purpose of speedily reoccupying,
one's removal is not temporary, or
by reason of casualty or necessity,
where he moves to another state, and
there organizes a business and be-
comes its manager with no intention
of returning if it is successful. Meyer
Bros. Drug Co. v. Fly, 105 Miss. 752,
63 S 227.

558.

11. See supra § 355.
Continuous intent see infra § 362.
12. U. S.-Peterson V. Wasser-
man, 246 Fed. 88, 158 CCA 314.
Ala.-Lehman V. Bryan, 67 Ala.
Ark.-Wolf v. Hawkins, 60 Ark.
262, 29 SW 892.
Ill.-Cabeen Mulligan, 37 Ill.
230, 87 AmD 247. But see infra note
14 [a].

V.

Iowa.- -Conway v. Nichols, 106 Iowa 358, 76 NW 681, 68 AmSR 311; Kimball v. Wilson, 59 Iowa 638, 13 NW 748; Leonard v. Ingraham, 58 Iowa 406. 10 NW 804.

Ky-Conway v. Reed, 193 Ky. 287. 235 SW 747; White v. Roberts, 112 Ky. 788, 66 SW 758, 23 KyL 2187; Mattingly v. Berry, 94 Ky. 544, 23 SW 215, 15 KyL 388; Burch v. Atchison, 82 Ky. 585; Carter v. Goodman, 11 Bush 228; Curran v. Culf, 15 SW 657, 13 KyL 84.

Miss. Hattiesburg Bank v. Mollere, 118 Miss. 154, 79 S 87; Meyer Bros. Drug Co. v. Fly, 105 Miss. 752, 63 S 227; Bennett v. Dempsey, 94 Miss. 406, 48 S 901, 136 AmSR 584; Thompson v. Tillotson, 56 Miss. 36.

Mo.-Smith v. Bunn, 75 Mo. 559;
Snodgrass v. Copple, 131 Mo. A. 346,
111 SW 845.

Okl.-Russell v. Koller, 174 P 560;
Carter v. Pickett, 39 Okl. 144, 134 P
440. But see infra note 14 [a].
S. D.-Yellowhair v. Pratt, 182
NW 702.

Tenn.-Roach v. Hacker, 2 Lea 633,
Tex.-Johnson v. Conger, (Civ. A.)
166 SW 405: McDowell v. Northcross,
(Civ. A.) 162 SW 13. But see infra
note 14 [a].

Wis.-Jarvais v. Moe, 38 Wis. 440.
Man.-Dixon v. McKay, 12 Man.

514.

[a]

Intent to return if his wife's health improved is not a present intention existing at the time of removal and the homestead rights are abandoned. Lehman V. Bryan, 67 Ala. 558.

[b] In Minnesota (1) under a statute which requires a notice of claim of homestead to be filed in case cessation of occupancy continues more than six months, the homestead exemption is lost by removal from or ceasing to occupy the property as a residence for more than six months unless notice was filed. Hall v. Holland, 138 Minn. 403, 165 NW 235; Quehl v. Peterson, 47 Minn. 13. 49 NW 390; Baillif v. Gerhard, 40 Minn. 172. 41 NW 1059; Russ 11 v. Speedy, 38 Minn. 303, 37 NW 340. (2) And this is so, even though there was an intention to return. Quehl v. Peterson, supra. (3) On the other hand, the right to remove from the premises for a period of six months without losing the homestead exemption is absolute and does not depend upon the filing of the notice prescribed by the statute nor upon reoccupation. Russell V. Speedy, supra. (4) Nevertheless, if the owner discontinues occupancy of his homestead. and moves away with the intention of abandoning it, his homestead right will not be preserved or continued by filing the statutory notice. Kramer v. Lamb. 84 Minn. 468, 87 NW 1024; Donaldson v. Lamprey, 29 Minn. 18, 11 NW 119. (5) And it has been so held in case of removal and acquisition of a new homestead elsewhere. Donaldson V. Lamprey, S 901, 136 AmSR 584. (2) Thus it

supra.

[b]

Intent to return only in case the homestead claimant cannot make a living elsewhere constitutes an abandonment of the homestead. Kimbal v. Wilson, 59 Iowa 638, 13 NW 748; Leonard v. Ingraham, 58 Iowa 406, 10 NW 804.

ne s

[d] A removal with the intent to return only in case the owner cannot make a sale of the homestead premises constitutes an abandonment thereof. Conway V. Nichols, 106 Iowa 358, 76 NW 681, 68 AmSR 311.

[e] Return contingent on securing more favorable position near homestead.-Where one leaves his homestead, and goes to another state and obtains work, taking his furniture with him, and his return is contingent upon securing a position more favorable near his homestead, he has ceased to "reside" on his homestead. Hattiesburg Bank Mollere. 118 Miss. 154, 79 S 87.

V.

13. Bradley v. Janssen, (Tex. Civ. A.) 93 SW 506, 507 ("That he may have desired, or contemplated, resuming business in the storehouse, at some indefinite future time, if able to do so, is immaterial").

[a] The mere intention again to resume business in a business hometead at an indefinite time in the future, dependent upon a contingency which may not happen, does not per petuate the previous homestead character of the property. Hill v. Hill, 85 Tex. 103, 19 SW 1016: Shryock v. Latimer, 57 Tex. 674; McDowell v. Northcross, (Tex. Civ. A.) 162 SW 13. 14. See cases infra this note. (1)

[a] Thus, it has been held: That where the owner of a homestead leaves it "with only a conditional intention of acquiring a residence elsewhere, he does not lose his residence so long as his intention remains conditional." Imhoff v. Lipe. 162 Ill. 282. 286, 44 NE 493. See Reilly v. Reilly, (I.) 26 NE 604 (where a widow, after occupying the homestead for a year, moves elsewhere, and rents it for nine years, but with intention of returning as soon as the growth of the city will enable her to carry on her business of dressmaking on the property, her homestead right is not lost by abandonment). But see supra note 12. (2) That "an abandonment of the homestead, will not be presumed from the fact that the head of the family has gone in search of another home. and being disappointed, returns to the Ives v. Mills, 37 IIL 73, 75, 87 AmD 238; Kitchell v. Burgwin, 21 Ill. 40. But see supra note 12. See McCammon v. Jenkins, 44 Okl. 612, 145 P 1163 (the intent of the owner of a homestead not to return

[c] Intent to return only on busi-
failure. (1)
-
One who re-
moves from the homestead premises
with the intent to return only in case
his business is not a success aban-
dons the homestead. Wolf v. Haw-
kins. 60 Ark. 262, 29 SW 892; Jarvais
v. Moe, 38 Wis. 440. To same effect
Bennett v. Dempsey, 94 Miss. 406, 48
has been held that to remove from
a homestead farm into town to be-
come a merchant, intending to return old home."
V.
if he "should quit business" amounts
to an abandoment of the exemp-
tion by the homesteader. Wolf v.
Hawkins, supra. (3) So, where the
homesteader stated, before removing

8. German State Bank v. Ptachek, (Okl.) 169 P 1094: Yellowhair Pratt, (S. D.) 182 NW 702; Sykes v. Speer, (Tex. Civ. A.) 112 SW 422. 9. Yellowhair v. Pratt, (S. D.) 182

NW 702.

10. Yellowhair v. Pratt, (S. D.)

15

[§ 362] (b) Continuing Intent. In order to prevent an abandonment of the homestead rights by removal, the intent to return must be a continuing one. If at the time of removal there is an intention to return but this intention is subsequently abandoned, the original intention ceases to be effective and there is an abandonment of the homestead right in the land,16 and no resumption of the intention will reclaim the right to a homestead.17

[§ 363] (8) Time of Forming Intent. Where the owner of the homestead removes therefrom, the intention to return by which the homestead rights are preserved must be formed at the time when the removal occurs. 18

Resumption of occupancy. It has been said that the intention to return formed on leaving the homestead must be executed by a resumption of the occupancy that once characterized the premises as a homestead.19 However, a homesteader who has removed from the premises with no intention to return may change his intention to resume possession and thereby reinvest the property with the homestead character;2 20 but such resumption of posses

sion has only the effect of creating a new homestead right from the time of the new occupancy;21 it does not affect the rights of third persons acquired in the interim between the loss of the old and the acquisition of the new homestead.2 22

23

[364] d. Effect of Intent to Remove without Actual Removal. An unperformed intention to remove from the premises will not constitute an abandonment; there must be an intention to change the residence and an actual change.2 But it has been held that, where the owner of a city homestead makes all preparations to abandon it and to reoccupy a former country homestead as speedily as possible and has made all preparations to do so, but is prevented by sickness and death from actually taking possession, the country homestead becomes reinvested with its homestead character and there is an abandonment of the city homestead.24

[365] 3. Removal and Conveyance.25 If the homesteader and his family remove from the premises and he afterward conveys them by a valid and absolute deed, 26 or if there is a sale followed by a

Wis.-Zimmer v. Pauley, 51 Wis. 282, 8 NW 219.

21. Titman v. Moore, 43 Ill. 169; Carter v. Goodman, 11 Bush (Ky.) 228; Kaes v. Gross, 92 Mo. 647, 3 SW 840, 1 AmSR 767.

22. Carter v. Goodman, 11 Bush (Ky.) 228; Kaes v. Gross, 92 Mo. 647, 3 SW 840, 1 AmSR 767.

on leaving it, provided he can realize | 170.
his desires elsewhere and sell the Mo.-Kaes v. Gross, 92 Mo. 647, 3
homestead, does not constitute an SW 840, 1 AmSR 767.
abandonment). (3) That the quali-
fied intention of one leaving his
homestead not to return to it if he
can sell it and invest the proceeds
in a home that will suit him better
is not an intention which, connected
with change of domicile, will operate
as an abandonment. Sanders v. Sheran,
66 Tex. 655, 2 SW 804. See Arm-
strong v. Neville, (Tex. Civ. A.) 117
SW 1010 (that a man left his home-
stead with intent not to return unless
his financial condition should become
such that he could not live elsewhere,
and signified his intention temporar-
ily to reside in another place if he
could sell the homestead, did not
show a fixed intention never to re-
turn, necessary to
abandonment).

But see supra note 12 [b].
15. Iowa.-Maguire V. Hanson,
105 Iowa 215, 74 NW 776.
Ky.-White v. Wilder, 10 Ky. Op.

836.

Mich.-Hoffman v. Buschman, 95 Mich. 538, 55 NW 458.

Nebr.-Corey v. Schuster, 44 Nebr. 269, 62 NW 470.

Tex.-Lynch v., McGown, 54 Tex. Civ. A 390, 117 SW 884: Gunn v. Wynne, (Civ. A.) 43 SW 290.

Sask. In re Dallin, 4 Sask. L. 158, 17 WestLR 557.

16. Maguire v. Hanson, 105 Iowa 215, 74 NW 776; Corey v. Schuster. 44 Nebr. 269, 62 NW 470; Edwards v. Reid, 39 Nebr. 645, 58 NW 202, 42 AmSR 607; Alexander v. Lovitt, (Tex. Civ. A.) 56 SW 685; Schwartzman v. Cabell, (Tex. Civ. A.) 49 SW 113: Bell v. Greathouse, 20 Tex. Civ. A. 478, 49 SW 258; Gunn v. Wynne, (Tex. Civ. A.) 43 SW 290.

17. White v. Wilder, 10 Ky. Op. 836.

18. Ark.-Gray v. Hartford Bank. 137 Ark. 232, 208 SW 302; Stewart v. Pritchard, 101 Ark. 141, 141 SW 505, 37 LRANS 807.

Ky-Mattingly v. Berry, 94 Ky. 544, 23 SW 215, 15 KyL 388; Curran v. Culf, 15 SW 657, 13 KyL 84.

Mo.-Duffey v. Willis, 99 Mo. 132, 12 SW 520: Kaes v. Gross, 92 Mo. 647. 3 SW 840, 1 AmSR 767; Smith v. Bunn. 75 Mo. 559.

Okl.-Russell v. Koller, 174 P 560. Tex.-Ritz V. Pecos First Nat. Bank, (Civ. A.) 234 SW 425.

19. Thompson Homst. § 267: Kaes v. Gross, 92 Mo. 647, 3 SW 840, 1 AmSR 767; Smith v. Bunn, 75 Mo. 559; Carter v. Pickett, 39 Okl. 144, 134 P 440.

20. Ill-Titman v. Moore, 43 Ill. 169. Ky.-Carter v. Goodman, 11 Bush

228.

Miss.-Campbell v. Adair, 45 Miss.

23. Ala.-Murphy v. Hunt, 75 Ala.
438.

Colo.-Edson-Keith v. Bedwell, 52
Colo. 310, 122 P 392.

Iowa.-Elder v. Reilly, 58 Iowa 403,
10 NW 804; Knorr v. Lohr, 108 Iowa
181, 78 NW 904; Griffin v. Sheley, 55
Iowa 513, 8 NW 343.

Ky.-Summers v. Sprigg, 35 SW
1033, 18 KyL 206; Lee v. Hughes, 77
SW 386, 25 KyL 1201.

Minn. Millett V. Pearson, 143
Minn. 187, 173 NW 411, 5 ALR 256;
Robertson v. Sullivan, 31 Minn. 197,
17 NW 36.

Mo.-Davis v. Land, 88 Mo. 436;
Kimberlin v. Gordon, 139 Mo. A. 464,
122 SW 1144.

V.

the purchaser into possession with the grantor, where such oral agreemen is forbidden by statute. Buettgenbach v. Gerbig, 2 Nebr. (Unoff.) 889, 90 NW 654. (2) An unexecuted promise to surrender the property. Cross v. Evarts, 28 Tex. 523. (3) A removal by the homesteader who leaves his family in possession of the former home, with instructions to follow him at a later date. Welborne v. Downing, (Tex.) 11 SW 501; McDannell v. Ragsdale, 71 Tex. 23, 8 SW 625, 10 AmSR 729. (4) An entry on government land does not constitute an abandonment of the entryman's homestead, in the absence of some overt act, such as actually moving from the homestead with no intention of returning. Kimberlin v. Gordon, 139 Mo. A. 464, 122 SW 1144.

[b] Intention to remove to another state.-(1) The mere fact that a debtor intends to remove from the state, or even that he is about to do so, and is making preparations to do so, with the intention of changing his residence, does not defeat his right to homestead exemption. Rasco Nebr.-Wheatley Chamberlain v. Sheet, 8 KyL 703; Davis v. Land, Banking House, 101 NW 1135; Na- 88 Mo. 436. (2) Thus the fact that tional Bank of Commerce v. Cham- a husband intended to sell out a livberlain, 100 NW 943; Quigley v. Mc-ery business belonging to his wife Evony, 41 Nebr. 73, 59 NW 767; Mallard v. North Platte First Nat. Bank, 10 Nebr. 784, 59 NW 511; Edwards v. Reid, 39 Nebr. 645, 58 NW 202, 42 AmSR 607; Eckman v. Scott, 34 Nebr. 317, 52 NW 822.

N. H.-Chase v. Barnard, 64 N. H. 615, 17 A 410; Nichols v. Nichols, 62 N. H. 621.

S. D.-Warner v. Hopkins, 42 S. D. 613, 176 NW 746.

Tex.-Welborne V. Downing, 73
Tex. 527, 11 SW 501; Little v. Baker,
11 SW 549; McDannell v. Ragsdale,
71 Tex. 23, 8 SW 625, 10 AmSR 729:
Archibald v. Jacobs, 69 Tex. 248, 6
SW 177; Medlenka v. Downing, 59
Tex. 32; Bayless v. Guthrie, (Commn.
A.) 235 SW 843; Hudgins v. Thomp-
зon, 109 Tex. 433, 211 SW 586; Hart
V. Hulsey, (Civ. A.) 196 SW 302;
Pierce v. Langston, (Civ. A.) 193 SW
745; Ward v. Baker, (Civ. A.) 135
SW 620.

Wis. Carter v. Sommermeyer, 27
Wis. 665.

"Abandonment of property actually
homestead, can not be accomplished
by mere intention; there must be a
discontinuance of the use coupled
with an intention not again to use
as a home to constitute abandon-
ment." Archibald v. Jacobs, 69 Tex.
248. 251, 6 SW 177 [quot Hudgins v.
Thompson, supra].

[a] Homestead character is not destroyed by: (1) An oral agreement to convey, with admission of

and move to another country will not constitute abandonment of the business homestead so long as he was actually in possesison thereof, using and occupying it as such. Farmers' State Bank v. Farmer, (Tex. Civ. A.) 157 SW 283.

[c] Mere preparation to abandon a homestead, coupled with intent to change residence, is not the equivalent of an actual change. The animo is not sufficient; there must be facto et animo. Herzfeld v. Beasley, 106 Ala. 447, 17 S 623.

24. Ross v. Porter, 72 Miss. 361, 16 S 906.

25. Abandonment as rendering transfer fraudulent see Fraudulent Conveyances & 67.

26. Cal.-Johnston v. Bush, 49 Cal.

183.

Mich.-Chambers v. Jackson, 106 Mich. 6, 75 NW 663; Farwell Brick, etc., Co. v. McKenna, 86 Mich. 283, 48 NW 959.

N. H.-Beland v. Goss, 68 N. H. 257, 44 A 387.

Okl.-Perkins v. Cissell, 32 Okl. 827, 124 P 7, 9 [cit Cyc].

Tex.-Kerr v. Oppenheimer, 20 Tex. Civ. A. 140, 49 SW 149; Focke V. Sterling, 18 Tex. Civ. A. 8, 44 SW 611;

Defective or invalid conveyance. The execution of a deed to the homestead without conforming to legal requirements if valid by delivery of possession to the purchaser constitutes an abandonment.30 But the execution of an invalid deed without a previous abandonment is not conclusive of abandonment unless accompanied by abandonment or surrender of possession by the purchaser.3 If the removal follows a conveyance void by statute because not joined in by the wife, the homestead is not considered as abandoned.32

31

33

[366] 4. Offer or Unexecuted Intention to Sell. A mere offer to sell homestead premises does not of itself amount to an abandonment thereof,3 although the owner at the time of the offer was temporarily residing away from the premises.34 offer to sell homestead property is not necessarily

Jones v. Robbins, 3 Tex. Civ. A. 200,1 22 SW 69.

27. Ala.-Mower V. Sharit, 204 Ala. 50, 85 S 23 (recognizing rule). Cal.-Taylor v. Hargous, 4 Cal. 268, 60 AmD 606 (recognizing rule).

Ill-Hart v. Randolph, 142 Ill. 521, 32 NE 517.

Kan. Anderson v. Kent, 14 Kan. 207; Thomas v. Smith, (A.) 54 P 695. Ky.--Nethercutt v. Herron, 8 SW 13, 10 KyL 247; Hall v. McGlothlin, 6 KyL 661, 13 Ky. Op. 312.

N. H.-Locke v. Rowell, 47 N. H. 46. N. D. Ferris v. Jensen, 16 N. D. 462, 114 NW 372 (recognizing rule). Tenn.-Collins v. Boyett, 87 Tenn. 334. 10 SW 512 (recognizing rule). Tex.-Cox v. Shropshire, 25 Tex. 113; Randleman v. Cargile, (Civ. A.) 163 SW 350.

An

Contract to sell, removal, abandonment of contract, and return to premises. There was no abandonment by removal under contract to sell, where the purchaser abandoned the contract and the widow and children of the owner who had died immediately after the execution of the contract returned to the premises within a few months after the contract was made.38

[§ 367] 5. Acquisition of New Homestead. Since no one can own two homesteads at the same time,39 if the debtor acquires a new homestead he thereby loses his rights in the former place of residence. 40 This is so, although he leaves part of his furniture in the prior residence,11 or files a notice that he claims the premises as exempt.42

Acquisition of new residence. It has been held that a person having acquired a new residence, although not a homestead, cannot be permitted to insist upon the homestead right, to defeat a deed or mortgage executed by him while occupying such

Blanchette, 193

Mich.-Steel V. Okl-Cade v. Vickers, 31 Okl. 131, Mich. 167. 159 NW 138. 120 P 611; Northwest Thresher Co. v. Okl.-Elliott v. Bond, 176 P 242 McCarroll, 30 Okl. 25, 118 P 352, [reh den 176 P 9911.

S. D.-Yellowhair v. Pratt, 182 NW 702.

Tex. Thomas v. Williams, 50 Tex. 269; Dunlap V. English, (Civ. A.) 230 SW 829; Thigpen v. Russell. 55 Tex. Civ. A. 211, 118 SW 1080; Gaar v. Burge, 49 Tex. Civ. A. 599, 110 SW 181; Harbison v. Tennison, (Civ. A.) 38 SW 232.

[a] Resort to all known means to sell homestead.-An owner of a homestead living apart therefrom does not forfeit his homestead rights therein by resorting to every known means to sell such homestead. Yellowhair v. Pratt, (S. D.) 182 NW 702.

34. Mower v. Sharit, 204 Ala. 50. 85 S 23; Steel v. Blanchette, 193 Mich. 167. 159 NW 138; Burkhardt v. Walker, 132 Mich. 93. 92 NW 778. 102 AmSR 386; Aultman v. Allen, 12 Tex. Civ. A. 227, 33 SW 679.

AnnCas1913B 1145.

S. D.-Warner v. Hopkins, 42 S. D. 613. 176 NW 746; Somers v. Somers, 27 S. D. 500, 131 NW 1091, 36 LRANS 1024; Ford v. Ford, 24 S. D. 644, 124 NW 1108.

Tex.

Tex.-McElroy v. McGoffin, 68 Tex. 208, 4 SW 547; Slavin v. Wheeler, 61 Tex. 654; Thorn v. Dill, 56 Tex. 145; Allison v. Shilling, 27 Tex. 450, 86 AmD 622; Stewart v. Mackey, 16 Tex. 56, 67 AmD 609; Calvin v. Neel. (Civ. A.) 191 SW 791; Alvord Nat. Bank v. Ferguson, 59 Tex. Civ. A. 113, 126 SW 622; Ayres v. Patton, 51 Civ. A. 186, 111 SW 1079: Tracy v. Harbin, 40 Tex. Civ. A. 395, 89 SW 999; Ghent v. Boyd, 18 Tex. Civ. A. 88. 43 SW 891; Scottish-American [a] Rule applied.—I'laintiffs occuMortg. Co. v. Scripture, (Civ. A.) 40 pied land and farmed it for several SW 210; Davis v. Taylor. (Civ. A.) years under a contract with which 33 SW 543; Russelt v. Nall, 2 Tex. they failed to comply. Having beCiv. A. 60, 20 SW 1006, 23 SW 901. come hopelessly in debt and unable to perform, the husband, in 1903, Vt.-Whiteman v. Field, 53 Vt. 554; Howe v. Adams, 28 Vt. 541. without his wife joining in the conWis.-Polzen v. Polzen, 164 Wis tract, sold his equity and disposed 18, 158 NW 327; Blackburn v. Lake of all his personal property, and both Wis. 362, 63 plaintiffs voluntarily removed from Wike v. Garner, 179 Ill. 257. Shore Traffic Co., 90 the land. It was held an abandon- 53 NE 613, 70 AmSR 102; Persifull NW 289; Schoffen v. Landauer, 60 ment of their contract, and, therefore, Wis. 334, 19 NW 95. V. Hind, 88 Ky. 296, 11 SW 15. 10 of Sask. In re Hetherington, 3 Sask. the homestead rights in land. KyL 880. See Staten v. Harris, (Tex. 239 Ferris v. Jensen, 16 N. D. 462, 114 Civ. A.) SW 344 L. 232. (recognizing [a] Rule applied.—(1) Where a rule). NW 372. 38. Persifull v. Hind, 88 Ky. 296, wife at the time of her marriage resided upon land which belonged to 11 SW 15, 10 KyL 880. 39. See supra § 23. her, and the husband and wife shortly 40. Ill-Titman v. Moore, 43 Ill. afterward removed from the wife's 169 (recognizing rule).

28. McHugh v. Smiley, 17 Nebr. 626. 24 NW 277 (the purpose for which the deed was made is open to inquiry, and if to secure a debt, a court of equity will declare the deed invalid). 29.

Jones v. Lanning, (Tex. Civ. A.) 201 SW 443.

30. Mower v. Sharit, 204 Ala. 50, 85 S 23. See also infra § 373.

35.

A.) 230 SW 829.
Dunlap v. English, (Tex. Civ.

36. Mower v. Sharit, 204 Ala. 50,
85 S 23.

37.

Iowa. Davis v. Kelly. 14 Iowa 523.
Kan. McAlpine v. Powell, 44 Kan.
411, 24 P 353; Atchison Sav. Bank
v. Wheeler, 20 Kan. 625.
Ky.-Crabb v.

land and established their homestead on the husband's land and continued to live upon it until he deserted the wife, such removal from her land constituted an abandonment thereof as a homestead. Potter, 14 SW 501, Swingle v. Swingle, 36 12 KyL 430; Jones v. Williams, 10 Ky. Op. 162.

Mich.-Wheeler v. Smith, 62 Mich.
373, 28 NW 907.
Minn-Donaldson v. Lamprey, 29
Minn. 18, 11 NW 119.
Miss.-Thoms v. Thoms, 45 Miss.

31. Mower v. Sharit, supra. 32. Taylor v. Hargous, 4 Cal. 268. 60 AmD 606; Collins v. Boyett, 87 Tenn. 34, 10 SW 512 [overr Levison v. Abrahams, 14 Lea (Tenn.) 336]. But compare Ferris v. Jensen, 16 N. D. 462, 114 NW 372 (where the spouses joined as required by law). 33. Ala. Mower V. Sharit, 204 Mo.-Rouse v. Caton, 168 Mo. 288, Ala. 50, 85 S 23. 67 SW 578, 90 AmSR 456; Rose v. Ark-Brown v. People's Bank, 234 Smith, 167 Mo. 81, 66 SW 940. SW 616.

'Cal.-Dunn v. Tozer, 10 Cal. 167. Ky. Gregory v. Oates, 92 Ky 532, 18 SW 231; Persifull v. Hind, 88 Ky. 296, 11 SW 15, 10 KyL 880.

263.

N. H.-Gerrish v. Hill, 66 N. H. 171.
19 A 1001; Nims v. Bigelow, 45 N. H.
343; Horn v. Tufts, 39 N. H. 478.
N. D.-Swingle v. Swingle, 36 N.
D. 611, 162 NW 912.

N. D. 611, 162 NW 912. (2) Where a wife who was wrongfully abandoned by her husband who had conveyed to her his homestead entered on a government homestead and resided thereon for the period required by the federal land laws to enable her to acquire title thereto, she thereby abandoned the homestead rights of the land conveyed by her husband. Somers v. Somers. 27 S. D. 500, 131 NW 1091, 36 LRANS 1024. 41. Donaldson V. Lamprey, 29 Minn. 18, 11 NW 119. 42. Donaldson V. Lamprey, 29 Minn. 18, 11 NW 119.

Effect of filing notice see supra §1 Hudson, 66 Tex. 1, 17 SW 110; Med-, established, removal therefrom to an

lenka v. Downing, 59 Tex. 32; Lips-
comb v. Adamson Lumber Co., (Tex.
Civ. A.) 217 SW 228; Torres v. Cuneo,
(Tex. Civ. A.) 53 SW 828. But see
Arnold v. Adams, 38 Tex. 425 [where
a rural homestead is embraced with-
in the corporate limits of the city,
by the extension thereof, the erection
of houses for rent on the land does
not destroy the exemption]); (3) or
where a part of the residence home-
stead is changed into a business
homestead (O'Brien V. Woeltz, 94
Tex. 148, 58 SW 943, 59 SW 535, 86
AmSR 829).

47%. Coltharp v. West, 127 La.
430, 52 S 675.

48. Coltharp v. West, 127 La. 430, 53 S 675.

49. Berry v. Meir, 70 Ark. 129, 66 SW 439; Wilkins v. Fremaux, 112 La. 921, 36 S 805.

50. Lutz v. Ristine, 136 Iowa 684, 112 NW 818 (by so doing he confirms his homestead right instead of committing an act of abondonment); City Sav. Bank v. Thompson, 91 Nebr. 628, 136 NW 992, 41 LRANS 89 (by moving from one lot to another a dwelling house, the homestead interest therein is not lost where the owner and his family live in it while it is being moved, abandon the old location, and in the new location continue to occupy the house).

51. Shone V. Bellmore, 75 Fla. 515, 78 S 605; Allen v. Dodson, 39 Kan. 220, 17 P 667; Randal v. Elder, 12 Kan. 257.

52. Declaration of no abandon- 66 NE 365. ment see supra § 360.

53. See statutory provisions.

54. Bell v. Wilson, 172 Cal. 123, 155 P 625 [dist Gregg v. Bostwick, 33 Cal. 220, 91 AmD 637 (decided under an earlier statute)]; Hohn v. Pauly, 11 Cal. A. 724. 106 P 226; Wentworth v. McDonald, 78 Wash. 546, 139 P 503.

55. Lubbock v. McMann, 82 Cal. 226, 22 P 1145, 16 AmSR 108; Tipton v. Martin, 71 Cal. 325, 12 P 244; Porter v. Chapman, 65 Cal. 365, 4 P 237; In re Clavo, 6 Cal. A. 774, 93 P 295; Schoenheider v. Tuengel, 96 Wash. 103, 164 P 748; Byam v. Albright, 94 Wash. 108, 162 P 10; Wentworth v. McDonald, 78 Wash. 546, 550, 139 P 503 [cit Cyc].

[a] Removal to another state. Where a homestead has been lawfully

N. C.-Chadbourn Sash, etc., Co. | that he abandoned his homestead v. Parker, 153 N. C. 130, 69 SE 1. Tex.-Focke v. Sterling, 18 Tex. Civ. A. 8, 44 SW 611.

See also supra § 365. Parol sale accompanied by delivery see infra § 374.

71. Rose v. Cookendolpher, 9 Ky. Op. 815.

72. Abernathie V. Rich, 256 Ill. 166, 99 NE 883; Matney v. Linn, 59 Kan. 613, 54 P 668.

73. Farmers' Sav. etc., Assoc. v. Berger, 70 Ark. 613, 69 SW 57.

74. Seal v. Sam, 131 La. 919, 60 S 616.

84. Vittengl v. Vittengl, 156 Iowa 41, 135 NW 63; O'Fiel v. Janes, (Tex. [a] Thus, it has been held that a Civ. A.) 220 SW 371. See also supra vendor who conveys a homestead § 366. thereupon loses the homestead right, [a] Thus one not in actual occualthough the title is subsequently ac-pancy of his homestead contracting quired, and that in an attempt to to sell it did not abandon it, he inreassert the homestead right such a tending at the time to use the provendor will not be heard to say that ceeds to buy another. Vittengi v. such conveyances were made and ex- Vittengl, 156 Iowa 41, 135 NW 63. ecuted without consideration and void. Jasper County v. Sparkham, 125 Iowa 464, 101 NW 134.

75. Brooks v. Young, 60 Tex. 32. 76. Thompson v. McConnell, 107 Fed. 33. 46 CCA 124.

77. Keeline v. Sealy, 257 Mo. 498, 515, 165 SW 1088 ("The only consideration of the deed from Miss Page to Mrs. Johnston was the deed from Mrs. Johnston to Miss Page; and there is no more reason why it should disturb the continuity of the homestead than if the exchange had been for a new one, or the consideration paid in cash and reinvested in a new one. In such cases no doubt exists that the rights possessed in the original homestead are transferred by the exchanges to the last one acquired").

78. In re Feas, 30 Wash. 51, 70 P 270.

79. Ainsworth v. Dorsey, (Tex. Civ. A.) 191 SW 594, 596 ("If it was not intended to and did not prevent appellee from using the property as his homestead, then it does not prove