Gouhenant v. Cockrell

• Decision Date: 01 January 1857
• Citation: 20 Tex. 96
• Parties: ADOLPH F. GOUHENANT v. ALEXANDER COCKRELL.
• Court: Texas Supreme Court

20 Tex. 96

ADOLPH F. GOUHENANT

v.ALEXANDER COCKRELL.

Supreme Court of Texas.

1857.

Admitting, however, as we have held, that less evidence than the acquisition of a new homestead, will be sufficient to prove such abandonment of a former homestead, as will subject the property to forced sale; and that where there is abandonment with a fixed intention not to return, the property may be opened to creditors; yet it must be undeniably clear, and beyond almost the shadow, at least all reasonable ground of dispute, that there has been a total abandonment with an intention not to return and claim the exemption. Ante, 29; 28 Tex. 523.

Appeal from Dallas. Tried below before the Hon. Nat. M. Burford.

The facts are sufficiently apparent from the opinion. The charge was full and clear, and entirely consistent with the decision.

Crockett & Guess, for appellant.

J. J. Good, for appellee.

HEMPHILL, CH. J.

This suit is to recover a lot of land in the town of Dallas, claimed by the plaintiff as his homestead, the defendant claiming title under sheriff's sale.

The main question, and the only one I shall examine is, Was the property the homestead of Gouhenant at the time of the sale? There is no serious doubt but that the lot had been the homestead of the plaintiff some months prior to the levy and sale under execution; but the defense is that it had been abandoned and the exemption forfeited. It was in substance said in the case of Shepherd v. Cassiday, decided at this term, that the right to an old homestead might be forfeited although a new one had not been acquired, where it had been abandoned with an intention not to return, and this intention was not changed before some opposing right had been legally vested by sale in a third person. The only question is whether this rule is not more unfavorable to the homestead exemption than ought, on principle, to be allowed; and whether, in aid of the homestead, the rule in relation to domicile should not be applied, viz.: that the old domicile remains until the party has not only acquired another, but has manifested and carried into execution his intention of abandoning his former domicile, and taking another as his sole domicile. Somerville v. Somerville, 5 Ves. 787. No matter how long or how far the party may have wandered, or how many casual or temporary residences he may have had, yet if his departure from his settled abode has been for purposes in their nature temporary, having an intention to return as soon as those objects are accomplished, or if in fact he does not acquire a new domicile, facto et animo, the old one remains, and after his death his personal property will be distributed according to the laws of that domicile. If the law allows this right to the heirs of a decedent, it does not seem very unreasonable that during life he might, until he acquired a new homestead, claim the old...