TTSING-ER, J.
This was an action in the nature of an equitable suit brought by W. M. Elliott, plaintiff in the trial court, to obtain the specific performance of a verbal contract •of a sale of land'made to him by J. R. Bond, defendant in that court. The plaintiff alleged that in March, 1915, the defendant sold the land to him by verbal contract, and that the consideration for the sale was an agreement on the part of the plaintiff to pay certain debts of the defendant and to assume the payment of one certain debt secured by a mortgage on the land.
In pursuance of the contract, plaintiff alleged that, with the knowledge and consent of the defendant, he, in good faith, took possession of the land at the time the contract was made; that he had made valuable permanent improvements thereon, collected the rents therefor, and was in possession thereof at the time suit was brought. He further alleged that he had paid the defendant all he had agreed to pay, including accrued interest on the mortgage indebtedness which he had assumed.
The defendant resisted the action upon three grounds:
(1) That the debts he owed and which plaintiff agreed to pay were to have been paid in April, 1915, and that plaintiff had not paid them at that time.
(2) That the verbal agreement for the sale of his land was in a violation of the statute of frauds.
(3) That the land was the homestead of the family, consisting of himself, his wife, and seven minor children; that the homestead had not been abandoned, but that the family had left it temporarily for the purpose of improving the health of two of the children who were ill; and that his wife had not joined in the contract of. sale of the land and refused to join in a conveyance thereof.
Considerable testimony was taken relative to these issues, and, upon final hearing of the cause, the court made findings in favor of the defendant’s contention that 160 acres of the land was the homestead of the family and that it had not been abandoned. Judgment was accordingly rendered denying plaintiff the relief sought, conditioned, however, upon payment by defendant into court, for the use o: plaintiff, of the amount of the debts of the defendant which plaintiff had paid, with interest on each payment from the time it was made less the amount of rents which plaintiff had collected.
No exception was taken by the defendant' to the judgment of the court, which, by the conditions attached thereto, virtually impressed the homestead found to exist with a lien to secure the payment of certain of his debts which the plaintiff-had paid, nor has he instituted any proceedings in this court questioning the correctness of such judgment To all intents and purposes he has accepted the judgment rendered, with, the condition thereto attached, and by his acceptance has manifested a purpose to comply with these conditions.
He has not objected to the judgment, nor called it in question by cross-petition in error, or otherwise. The question, therefore, of the soundness and correctness of the judgment of the trial court, with respect to the conditions imposed by that judgment upon the defendant, is not before this court and is not determined by this decision.
The findings and judgment of the court are attacked by plaintiff’s petition in error, and, to reverse the) same, he has perfected this appeal.
The defendant was the owner of 180 acres of land in one body in Pontotoc county. He and his family had lived on this land for several years. It was the place of residence, the home of the famly, and was known as the “home place” to distinguish it from 80 acres in the same county also owned by the defendant, but not adjoining the 180 acres.
Defendant and his family resided on this 180 acres continuously for several years before moving to the state of Texas in March, 1915, with the exception of a short time during the summer of 1914, when they tempo-rnrilv occupied, a heiwo on the 80 acre« owned by him, in order that a tenant who had rented a portion, or all of the 180 acres might have the home. Except that the home of defendant and his family was on the 180 acres, defendant had never designated or selected the family homestead.
So. at the very outset of the case, we are
confronted with the proposition that inasmuch as the defendant • owned more than 160 acres of land, if he desired to impress any part of it with the character of a homestead, he should have selected it as such, as required by the Constitution of the state and the statute adopted in accordance therewith.
While the beneficent protection cf our Constitution is extended only to such property as is homestead, it does not determine how the homestead shall be selected. Nor have we any statute which prescribed how the selection shall be made. Section 1, art. 12, of the Constitution provides that—
“The homestead of any family in this state, not within any city, town, or village, shall consist of not more than one hundred and sixty acres of land, which may be in one or more parcels to be selected by the owner.”
The statute, section 3343, Revised Laws 1910. is identical with this constitutional provision. Neither the Constitution nor the statute makes provision for such a contingency as arises here, where the property occupied and used as a home consists of more than the maximum number of acres allowed by law, and where there is also another separate parcel that might, under the law. be selected by the owner.
But the 180 acres in one body, owned by the defendant, had been occupied and used by him and his family as their home ever since he acquired title to it, with the exception of the short time they temporarily occupied another house in a separate parcel of land also owned by him. This occupancy and use was sufficient to- impress 160 of the 180 acres with the homestead character. And, in the absence of any statute to the contrary, he, as owner, had the right to select 160 of the 180 acres, so impressed with the homestead character, as the homestead cf his family, whenever the necessity for making such selection might arise, provided such selection included the residence or home of the family and was not manifestly made in disregard of the rights of others. Jaffrey v. McGough, 88 Ala. 648, 7 South. 333; Sparks v. Day, 61 Ark. 570, 33 S. W. 1073, 54 Am. St. Rep. 279.
The defendant testified at the trial as to the specific 160 acres which he regarded as the homestead of his family, and, if no selection had been made by him before the trial, he could have made it then, under the limitations above set'out, provided there had been no forfeiture or abandonment of it as a homestead Tumlinson v. Swinney. 22 Ark. 400 76 Am. Dec. 432.
It is claimed by plaintiff that the defendant abandoned the land as a homestead, at the time he verbally agreed to sell it and plaintiff agreed-to buy it on March 5, 1916; and that this verbal agreement, coupled with the subsequent removal of the family and the family possessions to the state of Texas, where the defendant engaged in farming, sent his children to the public schools, borrowed money from the hanks, etc., was evidence of his intention to abandon it.
As to the matter of the abandonment of a' homestead, no general rule of universal application can be enunciated and the question whether an abandonment has taken place must depend tipon and be determined by the peculiar facts and circumstances of each case.
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TTSING-ER, J.
This was an action in the nature of an equitable suit brought by W. M. Elliott, plaintiff in the trial court, to obtain the specific performance of a verbal contract •of a sale of land'made to him by J. R. Bond, defendant in that court. The plaintiff alleged that in March, 1915, the defendant sold the land to him by verbal contract, and that the consideration for the sale was an agreement on the part of the plaintiff to pay certain debts of the defendant and to assume the payment of one certain debt secured by a mortgage on the land.
In pursuance of the contract, plaintiff alleged that, with the knowledge and consent of the defendant, he, in good faith, took possession of the land at the time the contract was made; that he had made valuable permanent improvements thereon, collected the rents therefor, and was in possession thereof at the time suit was brought. He further alleged that he had paid the defendant all he had agreed to pay, including accrued interest on the mortgage indebtedness which he had assumed.
The defendant resisted the action upon three grounds:
(1) That the debts he owed and which plaintiff agreed to pay were to have been paid in April, 1915, and that plaintiff had not paid them at that time.
(2) That the verbal agreement for the sale of his land was in a violation of the statute of frauds.
(3) That the land was the homestead of the family, consisting of himself, his wife, and seven minor children; that the homestead had not been abandoned, but that the family had left it temporarily for the purpose of improving the health of two of the children who were ill; and that his wife had not joined in the contract of. sale of the land and refused to join in a conveyance thereof.
Considerable testimony was taken relative to these issues, and, upon final hearing of the cause, the court made findings in favor of the defendant’s contention that 160 acres of the land was the homestead of the family and that it had not been abandoned. Judgment was accordingly rendered denying plaintiff the relief sought, conditioned, however, upon payment by defendant into court, for the use o: plaintiff, of the amount of the debts of the defendant which plaintiff had paid, with interest on each payment from the time it was made less the amount of rents which plaintiff had collected.
No exception was taken by the defendant' to the judgment of the court, which, by the conditions attached thereto, virtually impressed the homestead found to exist with a lien to secure the payment of certain of his debts which the plaintiff-had paid, nor has he instituted any proceedings in this court questioning the correctness of such judgment To all intents and purposes he has accepted the judgment rendered, with, the condition thereto attached, and by his acceptance has manifested a purpose to comply with these conditions.
He has not objected to the judgment, nor called it in question by cross-petition in error, or otherwise. The question, therefore, of the soundness and correctness of the judgment of the trial court, with respect to the conditions imposed by that judgment upon the defendant, is not before this court and is not determined by this decision.
The findings and judgment of the court are attacked by plaintiff’s petition in error, and, to reverse the) same, he has perfected this appeal.
The defendant was the owner of 180 acres of land in one body in Pontotoc county. He and his family had lived on this land for several years. It was the place of residence, the home of the famly, and was known as the “home place” to distinguish it from 80 acres in the same county also owned by the defendant, but not adjoining the 180 acres.
Defendant and his family resided on this 180 acres continuously for several years before moving to the state of Texas in March, 1915, with the exception of a short time during the summer of 1914, when they tempo-rnrilv occupied, a heiwo on the 80 acre« owned by him, in order that a tenant who had rented a portion, or all of the 180 acres might have the home. Except that the home of defendant and his family was on the 180 acres, defendant had never designated or selected the family homestead.
So. at the very outset of the case, we are
confronted with the proposition that inasmuch as the defendant • owned more than 160 acres of land, if he desired to impress any part of it with the character of a homestead, he should have selected it as such, as required by the Constitution of the state and the statute adopted in accordance therewith.
While the beneficent protection cf our Constitution is extended only to such property as is homestead, it does not determine how the homestead shall be selected. Nor have we any statute which prescribed how the selection shall be made. Section 1, art. 12, of the Constitution provides that—
“The homestead of any family in this state, not within any city, town, or village, shall consist of not more than one hundred and sixty acres of land, which may be in one or more parcels to be selected by the owner.”
The statute, section 3343, Revised Laws 1910. is identical with this constitutional provision. Neither the Constitution nor the statute makes provision for such a contingency as arises here, where the property occupied and used as a home consists of more than the maximum number of acres allowed by law, and where there is also another separate parcel that might, under the law. be selected by the owner.
But the 180 acres in one body, owned by the defendant, had been occupied and used by him and his family as their home ever since he acquired title to it, with the exception of the short time they temporarily occupied another house in a separate parcel of land also owned by him. This occupancy and use was sufficient to- impress 160 of the 180 acres with the homestead character. And, in the absence of any statute to the contrary, he, as owner, had the right to select 160 of the 180 acres, so impressed with the homestead character, as the homestead cf his family, whenever the necessity for making such selection might arise, provided such selection included the residence or home of the family and was not manifestly made in disregard of the rights of others. Jaffrey v. McGough, 88 Ala. 648, 7 South. 333; Sparks v. Day, 61 Ark. 570, 33 S. W. 1073, 54 Am. St. Rep. 279.
The defendant testified at the trial as to the specific 160 acres which he regarded as the homestead of his family, and, if no selection had been made by him before the trial, he could have made it then, under the limitations above set'out, provided there had been no forfeiture or abandonment of it as a homestead Tumlinson v. Swinney. 22 Ark. 400 76 Am. Dec. 432.
It is claimed by plaintiff that the defendant abandoned the land as a homestead, at the time he verbally agreed to sell it and plaintiff agreed-to buy it on March 5, 1916; and that this verbal agreement, coupled with the subsequent removal of the family and the family possessions to the state of Texas, where the defendant engaged in farming, sent his children to the public schools, borrowed money from the hanks, etc., was evidence of his intention to abandon it.
As to the matter of the abandonment of a' homestead, no general rule of universal application can be enunciated and the question whether an abandonment has taken place must depend tipon and be determined by the peculiar facts and circumstances of each case. Thompson, Homestead and Exemption, § 273 et seq.
The testimony in the case tends to prove that the defendant, acting on the advice of his family physician, moved his family to the plains of West Texas for the purpose of improving the health of some of his children who were ill. He confidently expected the change to benefit his children, and- at the time he moved left a portion of his personal property on the farm, or in the possession of a neighbor, with direction to this neighbor to keep all of it for him until he returned. The greater portions of his household effects and other chattels were loaded on a car ready to be transported by rail to their destination, and his wife and the other members of his family were still in the county, either at their home, or at the home of some neighbor, when he made the verbal agreement with plaintiff to sell him the land. It is admitted by! the defendant that this agreement was made, the only difference in their testimony with respect
to
the terms of the agreement being as follows : Defendant testified that plaintiff was to pay off during the month of April, after the agreement was made in March, a certain note he owed the bank, and thus release o span of mules which were mortgaged to secure it. so as to enable him to use the mules as security for money or supplies in Texas, and that plaintiff was net to have possession of the land until this was done; while the plaintiff testified that he was to have immediate possession of the land, and that the note to the bank was not to b“ paid bv 1dm until it became due some time in the following fall. This note was not paid by plaintiff until after it became due the following October.
The interest on the indebtedness secured
by mortgage on the land, which became due ■the following November, after the verbal agreement was made between plaintiff and defendant in March, was paid by the defendant. Plaintiff undertook to pay it by having a check sent to the company which held the loan, but the check was returned, with the statement that it already had been paid by the, defendant.
The testimony further tends to prove that the defendant never established a permanent ■home for his family in the state of Texas-For some time he lived there with his family in a tent. At the time of the trial in December, 1916, he had been in the state less than two years, occupying land as a tenant fanner in two different counties, and had conditionally contracted to rent and cultivate land for the third year; but it was understood by his then landlord from conversations ho had with him that he was residing there only temporarily and intended to return to Oklahoma. The suit was filed and he was served with summons in December after the agreement was made in March, and the reason why the defendant did not sooner return 10 Oklahoma was because. plaintiff was
m
wssession of the land and had begun the suit against him.
At the time the verbal agreement between plaintiff and defendant was made defendant’s wife was not consulted in regard to it and knew nothing about it. Subsequently, some six or seven months afterwards, she informed plaintiff that she would not sign a deed conveying the land.
The plaintiff took possession of the land, collected the rents, and paid the taxes against it, but made no permanent improve•ments on it.
The contention of the plaintiff that defendant’s verbal agreement to sell the land, coupled with his removal and the removal of his family and most of his personal eflects to the state of Texas, evidenced a fixed and definite intention to abandon the homestead, is' not sound for the reason, among others, that the agreement was a conditional one, and the plaintiff failed to perform the condition required of Mm according to its terms. The defendant testified that his indebtedness to the bank, secured by a mortgage on bis team, was to have been" paid by the plaintiff during the month of April after the agreement was made in March, and that he made the agreement to this effect because he desired to use the team in! Texas as security to obtain necessary credit for the support of- his family. And he is supported in this regard by the testimony of an officer of the bank who' testified that the plaintiff came into the hank some time during March or April, 1915, inquired as to the amount of the defendant’s note, and, on being told the amount of it, stated that he would return directly and pay it off, and that the defendanl desired it paid off, the mortgage on his mule¡,, released, and the release sent to him so that he could buy supplies. The amount of this not© to the hank was the largest single obligation of tbe defendant which the plaintiff was to presently pay, and it was not paid by him until sometime after it was due on October 1, 1915.
So. the intention that existed in the mind of the defendant at the time he made the contract with the plaintiff was contingent on performance of the plaintiff of its terms. The defendant agreed to sell-provided the plaintiff would pay at the time and in the manner specified in the contract. Pending performance on plaintiff’s part, defendant and his family moved away.
As the contract was contingent on performance on the part of the plaintiff of his obligations thereunder, we may readily conclude that, whatever intention as to' an abandonment of the homestead existed in the mind of the defendant at the time it was made, it was not a fixed, definite, and abiding intention to abandon, but a possible intention to abandon provided a sale was made.
The land had already been rented by the defendant, and, according to his testimony, under the terms of the contract, plaintiff was not to have possession of the premises, or collect the rents until he had fully performed his obligations thereunder. Leaving a homestead with intent to abandon it if sale can. be made is not an abandonment. Cox v. Harvey, 1 Posey, Unrep. Cas. (Tex.) 268. 273; Gouhenant v. Cockrell 20 Tex. 96, 99; Newton v. Calhoun, 68 Tex. 451, 458 4 S. W. 645; Sanders v. Sheran, 66 Tex. 655, 2 S. W. 804.
Along the same general line with the foregoing conclusion, the following acts have been held not to show an abandonment: A publicly declared intention to move away and sell, Dunn v. Tozer. 10 Cal. 167; a willingness to convey, followed by a removal. Woolcut v. Lerdell, 78 Iowa. 668, 43 N. W. 609: an offer to sell by an owner temporarily residing away from the home premises. Aultman v. Allen. 12 Tex. Civ. App. 227 33 S. W. 679; an unexecuted intention to sell and reinvest the proceeds in an
other Lome, Wike v. Garner, 179 Ill. 257, 53 N. E. 613, 70 Am. St. Rep. 102. See, also, German State Bank v. Ptachek, 67 Okla. 176, 169 Pac. 1094.
And in the case of McCammon v. Jenkins, 44 Okla. 612, 145 Pac. 1163, Mr. Commissioner Thacker, afterwards Mr. Justice Thacker, speaking of the court said:
“When a homstead character once attaches to property, it will continue to he the homestead until abandoned by a going away therefrom with the definite intention never to return. 21 Cyc. 579; Sykes v. Speer (Tex. Civ. App.) 112 S. W. 426: In re Presnall (D. C.) 167 Fed. 406.
“And an intent never to return if the oc-cupantg going away from it can realize their desires and expectations elsewhere, and thereupon sell their homestead, being conditional, is not sufficient.”
The defendant testified that at the time he moved to Texas he left on the farm in controversy a bedstead, a couple of stoves, a box of school books, a double shovel and planter, a hay baler, several plow stocks, and a hog belonging to his wite; and that he did not try to dispose of them because he thought he, might need them when he came back. And a strong circumstance corroborating his evidence as to his intention to return is the fact that he paid the accrued interest on the debt secured by a mortgage on the land, which, if the agreement made between him and plaintiff had been carried out. plaintiff should have paid.
The letter written by the defendant to plaintiff on November 10. 1915, in which he directed plaintiff to take his
notes
and place them with the bank he had been accustomed to deal with and send a deed for him to sign, does not alter our conclusion, for the reason that it nowhere appears that the plaintiff followed these directions. He did write a • letter in which he stated that one Oummings had the notes and requested the defendant to sign a deed which was inclosed. This the defendant refused to do: and his refusal to sign the deed is additional corroboration of his testimony that he had not abandoned the land as a homestead, but intended to return to it.
There was evidence here sufficient -to. authorize the court to find, as it did find that the defendant, had not abandoned the homestead. In its findings the .court said :
“It is true there is
evidence pointing toward abandonment and there is evidence contradicting that idea.”
But basing its findings and judgment on the well-recognized rules of law that abandonment is a question of fact in which the intention of the parties in leaving the homestead is controlling, and that it must be established by clear, conclusive, and undeniable evidence, the court reached the conclusion that there had been no abandonment of the homestead in this ease. We feel that we would not be justified in disturbing this finding and the judgment rendered thereon.
This case is one of purely equitable cognizance and was properly tried to the court. The court saw and heard the witnesses and had opportunity to “measure the m«n.” Under such circumstances, even though the evidence is conflicting, and might have authorized the finding in favor of either party, unless this court can say that the findings and judgment of the. trial court were against the clear weight of the evidence, they should be upheld. Bank v. Earl, 2 Okla. 617, 39 Pac. 391; Light v. Bank. 2 Okla. 543. 37 Pac. 1075; Smith v. Skelton. 63 Okla. 116. 163 Pac. 268; Thomas v. Halsell, 63 Okla. 203, 164 Pac. 458; Dandridge v. Dandridge, 59 Okla. 146, 158 Pac. 445; Crump v. Lanham, 67 Okla. 33, 168 Pac. 43.
For the reasons herein stated, this cause is affirmed.
All the Justices concur.