controversy that the deed recorded in Cam-being void as to subsequent purchasers, witheron county, which purported to be a war- out notice, if not recorded, have no applicaranty deed without the reservation of a liention to forged deeds. Reliance on a recordor mention of purchase-money notes, was a ed forged deed may bring loss on him who forgery, and was not executed by W. 0. so relies, but it cannot affect the rights of Scott and wife to F. T. Alexander on July 6, the owner of the property. A man cannot be 1912, or any other time. The deed made by deprived of his property by a forged deed, Scott and wife conveyed 40 acres of land in no matter in what good faith the party acted Cameron county to F. T. Alexander for a nomi- who claims under it. The forged instrument nal cash consideration, and seven promissory is as absolutely void and ineffective as though notes for $500 each, which were described it had never existed. Devlin on Real Estate, in the deed, and a vendor's lien retained to $ 726; Smith v. Markland, 223 Pa. 605, 72 secure them. The real deed was not record-Atl. 1047, 132 Am. St. Rep. 747; Abee v. Bared, and in the forged deed there was no men- gas, 65 S. W. 489; Loring v. Jackson, 43 Tex. tion of notes or lien, but the consideration Civ. App. 306, 95 S. W. 19; Green v. Eddins, recited was $6,000 in cash. The real deed 167 S. W. 196. was typewritten, a part being on one page, [3] When the deed that was recorded in and a part with the signatures of the ven- Cameron county, which purported to be the dors and the acknowledgments on another deed of w. 0. Scott and wife, was attacked page. The evidence showed, without con- by an affidavit of forgery, the burden rested tradiction, that the first page of the real upon appellant to show that it was a genuine deed had been detached and another and instrument. Storey v. Flanagan, 57 Tex. 649; forged page attached in its place. Alexander Houston Oil Co. v. Kimball, 114 S. W. 662; did not testify. He had disappeared before West v. Houston Oil Co., 56 Tex. Civ. App. the trial, and his whereabouts could not be 341, 120 S. W. 228; Village Mills v. Houston ascertained. He left his wife and family in Oil Co., 186 S. W. 785; Rudolph v. Hively, Texas, where he disappeared. ,

Appellant | 188 S. W. 721. In this case no effort seems loaned Alexander $1,700, and to secure the to have been made to show the genuineness of money took a deed of trust on the 40 acres the deed, and almost the whole brief is directof land; the forged deed on record showing ed at the failure of the vendor to have venthat the title to the land was in Alexander. dee's deed recorded. The failure to record Appellant bought the land at the trustee's did not rest upon the vendor, but, if it had sale and he and his vendees, Harms and so rested, that could not possibly make a purBahr, bought in good faith without knowl- chaser under a forged deed an innocent puredge of the forgery.

chaser. The superior title to the land still [1] It did not devolve upon the vendors of remained with the vendor in spite of the recthe land to record the deed to Alexander, ord of a forged deed. The proof offered by and the failure to record could not have de appellee, which he was not compelled to offer, ceived or misled any one, for as long as it led to the irresistible conclusion that the deed was unrecorded the record title to the land pleaded as a muniment of title by appellant was in the vendors, and it became the duty was a forgery of the rankest and crudest of a person who desired to lend money to a character. Of all men in the world, Alexanperson in possession of the land without a der was most interested in the trial of the deed to investigate his right to hold posses- cause, for his reputation was at stake; but sion. The laws of Texas do not require that when the supreme moment came he had disa vendor should have his deed to his vendee appeared, so that even his wife did not know recorded before delivery, and after delivery where he had gone. Appellant did not even he could not, if he would, have the deed re- offer in evidence the forged deed, upon which corded. It is then in the hands of the ven- it was forced to depend for a recovery. dee, and subject to his control. Most ven

[4] The court verbally instructed a verdict • dees desire the record of their deeds, for it for appellee, and while the statute requires is a protection to them against a subsequent the law of the case to be charged in writing, sale by the vendor to an innocent purchaser, under the facts of this case no other verdict without notice. The duty to record the deed

could have properly been rendered, and thererested on Alexander, and not on Scott, and fore the failure to give a written charge is the lattter cannot be held responsible for the failure of Alexander to record the deed 81 s. w. 68; Wallace v. Shapard, 42 Tex. Civ.

utterly immaterial. Schwartzlose v. Mehlitz,

. executed by Scott and wife.

[2] This case must be considered exactly App. 594, 94 S. W. 151. Appellant requested a as though no deed from Scott and wife was special instruction, and at the time verbal

The upon record, and appellant occupies the same charge was given made no objection. position that it would have occupied had the first objection urged was two days after the forged deed not been recorded. That instru- trial in the motion for new trial. ment was a nullity, and its record could not

[5] The special charge requested by appeland did not give it vitality. The forged lant was an instruction to find for appellant, deed could not affect the title to the land, and was based on a false premise that while and was therefore not entitled to record. the superior title to the land was in appellee, The provisions of the statutes as to deeds still he held it subject to the lien created by the

deed of trust given by Alexander to appellant. ,3. HOMESTEAD 154-LOSS OF RIGHT. By that charge the nullity of the forged deed mains such until it has been abandoned or an

When a homestead has been acquired it rewas recognized, for if it had been valid appel- other homestead acquired. lee would not have held the superior title to 4. HOMESTEAD 181(1) ABANDONMENT the land. The assignment which attempts to BURDEN OF PROOF. assail the action of the court in refusing the

When it is shown that a homestead once special charge is not a proposition of law in existed the burden rests upon those who conitself, nor is it followed by a proposition, and test its continuance to show that it has been might well have been disregarded. However, 5. HỌMESTEAD O 162(1) ABANDONMENT it has been considered, and is overruled.

WHAT CONSTITUTES. The judgment is affirmed.

To constitute abandonment it is not sufficient to show a mere discontinuance of the use

of the property as a residence, but it must also On Motion for Rehearing.

be shown that such discontinuance was accom

panied by an intention never to resume its use This court stated that appellant bought the as a homestead. land at the trustee's sale, and based the find-6. HOMESTEAD 163 “ABANDONMENT" ing on the testimony of Hertzberg, its at

WHAT CONSTITUTES. torney, and Albers, its vice president and sec- family did not reside upon the lot in question,

That for several years defendant and her retary. The latter said:

but upon other property owned by her, and "When we bought the property in, we either that during a part of that time she and her hushad to carry it on the books as real estate, or band resided in another state, does not necessacarry it in the way of loan. We then made a rily disclose an abandonment of defendant's deed to Mr. Harms, and took his note for homestead rights in lot.

$3,000, as a matter of convenience for carrying [Ed. Note.-For other definitions, see Words . it on the books as a loan instead of carrying it and Phrases, First and Second Series, Abandonas real estate."

ment.] Again, he swore in regard to the pretended 7. HOMESTEAD Oww164 – "ABANDOŅMENT" sale to Harms:

WHAT CONSTITUTES.

A mere acquisition and occupancy of a home “The property still belonged to the Alamo in another governmental subdivision, whether it Trust Company."

be another county or another state, is not conHe also stated that neither Harms nor when it is shown that such was not the intention

clusive proof of abandonment of a homestead, Bahr had any interest in the land. This of the person claiming the homestead right. court was mistaken in stating that Harms and Bahr bought in good faith. It seems that

Appeal from District Court, Travis Counthey did not buy at all. That conclusion is ty; Ireland Graves, Judge.

Trespass to try title by A. Robinson, trusnot objected to by appellant, but the conclusion that appellant bought in good faith at tee, against Mrs. M. V. J. McGuire and hustrustee's sale is objected to, and we withdraw band. Judgment for defendants, and plainthat finding, which leaves appellant in the

tiff appeals. Affirmed. attitude of claiming that a deed of trust giv- Hart & Patterson, of Austin, for appellant. en by a vendee on land for which the purchase Warren W. Moore, of Austin, for appellees. money has not been paid, and on which is held a valid vendor's lien, is superior to that KEY, C. J. Appellant brought this suit vendor's lien. Of course no authority is or against appellees, Mrs. M. V. J. McGuire could be offered to sustain such a proposition. and her husband, C. H. McGuire, to recover To so hold would destroy a line of precedents about 62 acres of land situated in Travis dating back to the foundation of the Texas county; the petition being in the usual form Republic.

of trespass to try title. The defendants' anThe motion for rehearing is overruled.

swer included a general demurrer, general denial, and plea of homestead. There was a jury trial, which resulted in a verdict and

judgment in favor of the defendants, and the ROBINSON v. McGUIRE et al. (No. 5894.) plaintiff has appealed.

The proof shows that the property in (Court of Civil Appeals of Texas. Austin.

question was the homestead and community March 19, 1918.)

property of W. B. Barr and appellee Mrs. 1. HOMESTEAD Om 181(3) - ABANDONMENT McGuire, on December 31, 1902, at which SUFFICIENCY OF EVIDENCE.

time W. B. Barr died. After her husband's In trespass to try title evidence held insuffi- death, Mrs. Barr bought a house and lot in cient to show that defendant wife had abandoned her homestead right in the property in con- the city of Austin, which she moved to and troversy.

occupied with her children for several years, 2. HOMESTEAD 181(3) - ABANDONMENT

when she sold it and bought another house SUFFICIENCY OF EVIDENCE,

and lot in the same city, which she subseEvidence held to support jury finding that quently sold; and thereafter she and her return to homestead awarded her by partition present husband, C. H. McGuire, went to decree and had not at any time thereafter in- Denver, Colo., where they purchased a house tended to reside permanently in another state. and lot which they occupied as a home for

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about three years. After Mrs. McGuire it as a good investment, because they could moved to Austin she married a man by the pay for it by monthly installments and save name of Westfall, but was subsequently di-paying rent. The proof also shows that in vorced from him and thereafter married order to render property a homestead in the her present husband, Mr. McGuire. When state of Colorado, it is necessary to have the Mr. Barr died he and his wife had three clerk where the deed is recorded make an living children; and in 1905, in a partition entry upon the record book, showing that the suit, a decree was rendered vesting title to property is claimed as homestead; and this the land in controversy in Richard Everett was not done by the McGuires, and Mr. McBarr, subject to the homestead right of his Guire testified that they did not do so bemother, who is now Mrs. McGuire, and one cause they claimed the property involved in of the appellees in this case. Thereafter, this suit as their homestead. It was also Richard Everett Barr was adjudged a bank- shown that on one occasion, while in Colorupt, and A. Robinson, the appellant in this rado, Mrs. McGuire voted at an election, but case, was appointed trustee of the bankrupt it was not shown that her husband did so. estate; and, as heretofore stated, he in- The proof also shows that after moving into stituted this suit to recover the property Austin, Mrs. McGuire rented the property in from Mrs. McGuire and her husband, his controversy, and that she frequently returncontention being that the homestead right ed to it, and sometimes remained there for which was vested in Mrs. McGuire by the days at a time, and that she used the renpartition decree referred to had been aban- tal obtained for it for the purpose of supdoned, and therefore she was not entitled to porting her children and herself. She testithe possession and use of the premises.

fied that their residence in Colorado was The trial court submitted the case to the never intended to be permanent, and that she jury upon two special issues, which were as had always intended to return to the propfollows:

erty in controversy, though no definite date "Question No. 1. Has the defendant, Mrs. M. for such return had ever been fixed. V. J. McGuire, at any time since the 19th day [2] We have not undertaken to set out the of October, 1905 (the date of the partition de language used by the witnesses, but the forecree above referred to), had or formed an intention not to return to the property known as going statement is substantially correct. the home place at Sprinkle, for the purpose of Other and disinterested witnesses testified to using and occupying same as her home?" having heard Mrs. McGuire state, while re

"Question No. 2. At the time of the removal of the defendant to the state of Colorado, or at siding in Austin, that she intended to return any time thereafter, has there been an intention to her home at Sprinkle, which is the propon the part of the defendant Mrs. McGuire to erty in controversy; and our conclusion is reside permanently in Colorado?”

that the testimony supports the findings of The jury answered both of those questions the jury, and that the undisputed facts and in the negative; and thereupon judgment the findings referred to support the action of was rendered in favor of the defendants.

the trial court in rendering judgment for ap[1] It is not necessary to set out in detail pellees. the several assignments of error presented [3-5] Counsel for appellant have cited some in appellant's brief, the main contention be authorities in other jurisdictions tending to ing that the proof shows that Mrs. McGuire show that when the owner of a honiestead had abandoned her homestead right to the removes to and acquires a home, or exercises property. Mrs. McGuire testified, and sub- rights of citizenship in another state, he mitted other testimony tending to the same thereby loses all homestead rights in propeffect, that she never intended to permanent- erty in the state from which he has moved; ly abandon the property in question, but al- but, in so far as we have been able to ascerways intended at some time in the future to tain, that rule does not prevail in Texas. As return and use it as her home. She stated we understand it, the prevailing doctrine in that she moved into Austin for the purpose this state is that, when a homestead has been of educating her children; and that she went acquired, it remains such until it has been to Colorado upon the advice of a physician, abandoned, or another homestead acquired; hoping to improve the condition of her and that, when it is shown that the homehealth. The proof shows that after she and stead once existed, the burden of proof rests her husband arrived in Denver, Colo., he upon those who contest its continuance to was offered a position as teacher in one of show that it has been abandoned; and that, the schools there, and as there was doubt

, about his securing the position he had for- in order to constitute an abandonment, it is merly held in a school in Austin, he accept- of the use of the property as a residence, but merly held in a school in Austin, he accept- not sufficient to show a mere discontinuance ed that employment, and taught there up to the time of the trial of this case. He stat- it must also be shown that such discontinued that it was not the intention of himself or ance was accompanied by an intention never wife to remain permanently in Colorado, but to resume its use as a homestead. that they intended to return to Texas. Mrs. [6] In the present case, the undisputed McGuire testified that their reason for buy, proof shows that for several years Mrs. Mcing the house and lot in Denver was because Guire and her family have not resided upon

property owned by her; and that during part of Campbell and his family, but he and family of that time she and her husband have re- had been absent from it for some time, as claimsided in another state. But those facts do ed, and the great weight of the evidence tended

to show, because it was necessary for him to not necessarily disclose an abandonment of remain in the state of Missouri under treatment Mrs. McGuire's homestead right in the prop- by a specialist for a dangerous disease, but with erty, because such abandonment did not ex. intent at all times to return to it as soon as ist unless she acquired another homestead, dence, the court, in connection with other prop

his condition would permit. So being the evior at some time during her absence from the er and relevant charges, instructed the jury that, property there was formed in her mind an in- 'in order for the plaintiff to recover on the tention not to return and use it as her home-grounds of abandonment, you must be satisfied stead. That was the only question in the bell, at the time of leaving the state, did so

by preponderance of evidence that W. S. Campcase about which the testimony left any room with the intent to abandon his said homestead, for contention or difference of opinion, and, or that since leaving he determined to abandon therefore, the trial court very properly re had changed his domicile from Texas, where it

the same.' Appellant claimed that Campbell stricted the jury to a consideration of that is shown once to have been, to the state of Misquestion.

souri, and the great burden of his brief is to es[7] As to the contention that appellees' re- tablish the proposition that Campbell had changmoval to another state, and the acquisition of the state of Missouri, without intent to re

ed his domicile and become a citizen or resident of a home therein, constituted an abandon-turn to his home in Texas. If he had establishment of their homestead rights in this state, ed that proposition to the satisfaction of the even though they may not have acquired a jury, under the charge of the court, the verdict

would have been in his favor on the question of homestead in Colorado and may have intend

abandonment. One having acquired domicile ed to return to the property in controversy does not lose it without removal from it with inand use it as a homestead, our conclusion is tent not to return, and the same is true as to that such contention is not supported by The burden of proof in either case rests upon

abandonment of a homestead once acquired. sound reason. We are unable to perceive the person asserting the affirmative of the propwhy the crossing of a governmental bound- osition. One may wrongfully exercise such powary line, whether it be county, state, or na- ers or privileges as can be exercised lawfully tional, and the acquisition of a home there, only by an actual citizen of the state in which

they are exercised, and this will be evidence of should be given conclusive effect in determin- the fact that he is a citizen of the state in ing the question of abandonment of a home which he assumes to exercise rights which perstead right, in the absence of a statutory or tain only to citizenship, but not conclusive evi. constitutional provision declaring that such dence of that fact.” effect should be given to it. Of course, such In addition to the case quoted from, the circumstances constitute evidence tending to following are cited in support of our decishow abandonment of the homestead right, sion: Lumpkin v. Nicholson, 10 Tex. Civ. and if it be shown that the newly acquired App. 108, 30 S. W. 568; Aultman & Co. v. home was acquired or used with the inten- | Allen, 12 Tex. Civ. App. 227, 33 S. W. 679; tion of making it a homestead, then, wheth- / Farmer v. Hale, 14 Tex. Civ. App. 73, 37 S. er it be located in another state, or in the W. 164; Gaar, Scott & Co. v. Burge, 49 Tex. same state, the former homestead right will Civ. App. 599, 110 S. W. 182. See, also, aube lost, because no one can have two resi-thorities collated in Harris' Constitution of dence homesteads at the same time. But the Texas, beginning on page 853, and similar mere acquisition and occupancy of a home in collation by Judge Speer in the last edition another governmental subdivision, whether it of his excellent treatise on Marital Rights be another county or another state, ought in Texas, on pages 536 and 537. In the last not to be held conclusive proof of an aban- case cited, the Galveston Court of Civil Apdonment of the homestead, when it is shown peals reviews Trawick v. Harris, 8 Tex. 315, that such was not the intention of the per- Jordan v. Godman, 19 Tex. 273, and Smith son claiming the homestead right. In support v. Uzzell, 56 Tex. 316, and shows that certain of our decision upon this point we copy from expressions of the court in those cases, conthe opinion of the Supreme Court in Graves cerning the effect of removal to another state, v. Campbell, 74 Tex. 576, 12 S. W. 238, as do not establish the law that in this state follows:

such removal ipso facto destroys pre-exist.. "The second assignment is that 'the court err- ing homestead rights. In Aultman & Co. v. ed in the third paragraph of his charge, in this: Allen and Farmer v. Hale, supra, it is held He tells the jury, "If defendants, W. S. Camp- that the ownership and use of another home bell and wife, Adelia, when they moved away does not necessarily constitute abandonment from said property, did not intend not to return to said property, and use it as a homestead, or of a pre-existing homestead right. if they did intend and still intend to return and The other questions presented in appelso use said property and occupy it as a home-lant's brief have been considered, and are stead, and that neither of them has ever acquir- decided against him. ed any other homestead since they went away from the property in controversy, then, in such

It will be noted that this case does not incase, such property was not subject to forced volve any controversy between creditors of sale, and you will find for defendant." was evidence which made such a charge proper, In the instant case the controversy is be

There one claiming a homestead and such claimant. and we understand the law to be as therein stated. There was no controversy as to the fact tween the representative of the creditors of that the property was at one time the homestead Richard Everett Barr and his mother,

whose title to the property is fixed by a , praying for an injunction against Houston decree of court, which vests the fee-simple Oil Company of Texas, and all the other aptitle in the son, subject to the homestead pellants here, whom it is not necessary to right of the mother. Of course, the creditors name, as well as their agents, servants, and of Richard Everett Barr can assert no claim employés, restraining and enjoining them to the property, as against his mother, which from in any manner interfering with appelcould not be asserted by him; and, whether lees' possession of a certain designated poror not that distinguishes this from the class tion of three surveys of land in Tyler county, of cases in which the question of abandon- Tex., known as the North, South, and Middle ment of homestead rights has been consider. Hooe surveys, over which designated pored, we have not undertaken to and do not tions of said surveys appellee, Bradford decide.

Hicks Lumber Company, was alleged to be No error has been shown, and the judg-desirous of constructing a

a tram railroad ment is affirmed.

track. Upon said petition, Hon. J. Llewellyn, Affirmed.

on the date same was presented to him, indorsed his fiat, granting said injunction with

out notice to appellants, and without affordKIRBY LUMBER CO. et al. v. BRADFORD ing them an opportunity to be heard, and said HICKS LUMBER CO. (No. 399.) *

petition, with the fiat of said judge indorsed (Court of Civil Appeals of Texas. Beaumont. thereon, was filed with the clerk of the disApril 24, 1918. Rehearing Denied trict court of Tyler county, Tex., on March May 15, 1918.)

6, 1918. TENANCY IN COMMON 45–CONVEYANCE BY On March 15, 1918, appellants filed with

ONE TENANT-RIGHT OF GRANTEE AGAINST the district clerk of Tyler county, Tex., their COTENANTS-INJUNCTION.

Notwithstanding the rule that where a ten-appeal bond, whereby they perfected an.apant in common conveys to a stranger a specific peal from the order of said judge, and at part of the common lands without consent of the same time filed in said district court of his cotenants, ineffectual to prejudice their rights, Tyler county certain assignments of error, a court of equity, on partition proceedings, will give effect to the deed, and confirm in the challenging the correctness of the action of stranger title to such portion, where, on learn- Judge Llewellyn in granting said injunction. ing of all the facts, it is shown partition can so Thereafter, on March 16, 1918, appellants independent suit, pending partition suit by the filed in this court a transcript of the record tenants in common, have those not joining in the prepared by the clerk of the district court of deed to him, of a strip for a railroad, enjoined Tyler county, and their appeal is now before from interfering with his exclusive possession this court for hearing and disposition. for construction and operation of the road, on allegation that on partition the specific portion,

We shall not undertake to set out at attempted to be conveyed to him, can be allowed length the petition of the appellee, upon and confirmed in him, without injury to the ten- which the order by Judge Llewellyn in chamants not joining in the deed; this being a de-bers was made, but think it will suffice to nial of the right of all tenants to possession in all portions of the land; a determination in state the following material facts, which apadvance of the partition proceeding that parti- pear from the petition, and which facts tion can be so made; an embarrassment of the alone are relied upon by the appellee here to partition proceedings; and in effect another uphold the injunction granted in this case: partition proceeding.

(1) It is alleged that appellee, Bradford Appeal from District Court, Tyler County; Hicks Lumber Company, is the owner of the J. Llewellyn, Judge.

W. S. Brown survey of land in Tyler county, Suit by the Bradford Hicks Lumber Com- upon which it has just completed the conpany against the Kirby Lumber Company struction of a sawmill for the purpose of and others for injunction. Judgment for manufacturing lumber, and that this Brown plaintiff, and defendants appeal. Reversed survey of land is located just north of three and rendered.

other surveys of land in said county, known Andrews, Streetman, Burns & Logue and as the North, Middle, and South Hooe surKennerly, Williams, Lee & Hill, all of Hous-veys; and that appellee is also the owner of ton, for appellants. Fisher, Campbell & all the timber on a league of land known Amerman, of Houston, Greer & Nall, of Beau- as the George Brown league, in Hardin counmont, and Coleman & Lowe, of Woodville, ty, and which lies immediately south of the for appellee.

South Hooe survey, and that appellee is de

sirous of cutting the timber on the George HIGHTOWER, C. J. The nature and re Brown league in Hardin county, and hauling sult of this suit, as stated in the brief filed same to its said sawmill for manufacture by appellants herein, is found to be substan- into lumber, etc. tially correct, and is as follows:

(2) It is alleged that in August, 1917, ThomOn March 2, 1918, the appellee, Bradford as S. Hughes, Thomas J. Baten, W. D. GorHicks Lumber Company, presented at Conroe, don, Mrs. Carrie Little, as executrix, and for Tex., to Hon. J. Llewellyn, judge of the dis-herself individually, W. S. Parker, and E. C. trict court of Tyler county, Tex., a petition (McLean made a deed to appellee, whereby

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