MAXEY, District Judge
(after stating the facts as above). The question to be determined is whether the property in controversy should be set apart to the bankrupt as his homestead. By article J 0, § 51, of the Constitution of this state, it is provided:
“The homestead in a city, town or village, shall consist of lot or lots, not to exceed in value five thousand dollars at the time of their designation as the homestead, without reference to the value of any improvements thereon; provided, that the same shall ,be used for the purposes of a home, or as a place to exercise the calling or business of the head of a family; provided, also, that any temporary renting of the homestead shall not change the character of the same, when no other home has been acquired.”
. The jealousy with which homestead rights are protected by the laws of Texas is aptly illustrated by the following language of Mr. Chief Justice Hemphill in Shepherd v. Cassiday, 20 Tex. 30, 70 Am. Dec. 372:
“The homestead is not to be regarded as a species of prison bounds, which the owner cannot pass over without pains and penalties. His necessities and circumstances may frequently require him to leave his homestead for a greater or less period of time. He may leave on visits of business or pleasure, for the education of his children, or to acquire in some more favorable location means to improve his homestead, or for the subsistence of his family; or he may intend to abandon, provided he can sell. But let him leave for what purpose he may, or be his intentions what they may, provided they are not those of total relinquishment or abandonment, his right to the exemption cannot be regarded as forfeited.”
In the present case it is insisted by the trustee, first, that the property in its entirety was abandoned by the bankrupt and his wife as a homestead; or, second, if the entire property was not abandoned, there was a partial abandonment of so much of the building as was leased or rented for boarding house purposes. Did the renting, by the bankrupt and his wife to their daughter, Mrs. Wooley, from year to year for the period from 1896 to 1907, operate, under the facts of this case, as an abandonment, for homestead purposes, of the property which had been used exclusively as a home since the erection of the building in the year 1889 ? The word “abandonment” implies desertion, relinquishment, and as applied to a homestead the abandonment, or desertion, must be coupled with the fixed intention not to return. The evidence here shows that the bankrupt and his wife, throughout the period of control of the property by the daughter, occupied a room in the house as boarders, and used the-parlors and dining rooms, hallways, and barn as other boarders, and that they had no intention of abandoning the property as their homestead. In 1907 a written lease for four years was executed to the daughter, and she in turn leased the property for the same period to Hutchins. Erom the date of the execution of this lease the bankrupt and his wife resided with their daughter, in a house across the street from the property in controversy, until November, 1908, when the two leases were canceled and they returned to the property. The referee finds as a fact that, when the bankrupt and his wife left the home, “they [409]*409did so with the expressed intention of returning thereto at the expiration of the Hutchins lease,” and that they left the property “because it had become unsuitable as a home on account of its use as a boarding house and the condition of Mrs. Presnalbs health, but with the intention to return to the same for the purpose of holding the property as a homestead against creditors.”
Does the evidence disclose an abandonment of the property for homestead purposes? The rule as to abandonment is clearly stated by Judge Hodges in Sykes v. Speer (Tex. Civ. App.) 112 S. W. 426, as follows:
“When a homestead character once attaches to property, it will continue to he the homestead till the owner voluntarily changes its character by disposing of the property, or by leaving with the intention of not returning and occupying it as a home. Baum v. Williams, 16 Tex. Civ. App. 407, 41 S. W. 840; Gunn v. Wynne (Tex. Civ. App.) 43 S. W. 292; Fyffe v. Beers, 18 Iowa, 11, 85 Am. Dec. 581. * * * Abandonment is accomplished, not merely by going away without any intention of returning at a particular time in the future, but by going away with the definite intention never to return. Foreman v. Meroney. 62 Tex. 726; Holland v. Zilliox, 38 Tex. Civ. App. 416, 86 S. W. 37; Thomas v. Williams, 50 Tex. 271. In every case abandonment is to be regarded as a question of fact, to be ascertained from all the circumstances surrounding the particular transaction. The intent of the parties in leaving the homestead is the controlling fact. Cline v. Upton, 56 Tex. 319. When no other homestead has been acquired, ‘it must be undeniably clear, and beyond almost tlie shadow at least of reasonable grounds of dispute, that there has been a total abandonment with an intention not to return and claim the exemption,’ before an abandonment will be found. Gouhenant v. Cockrell, 20 Tex. 97; Cantine v. Dennis (Tex. Civ. App.) 37 S. W. 186. The first case cited, in which the language quoted was used, has been cited with approval in numerous cases since.”
And it is said by Mr. Justice Field, in Hurt v. Hollingsworth, 100 U. S. 104, 25 L. Ed. 569:
“According to the decisions of the Supreme Court of Texas, it would appear that, in order to work a forfeiture of 1l;e right to the homestead, the owner's cessation of occupancy must bo with an intention of total relinquishment, shown by clear and decisive circumstances.”
That the renting of a part of a building for boarding house or mercantile purposes, while the owner occupies the remainder of the building as his home, does not operate as an abandonment of any part Of the structure as a homestead, has been expressly decided by the courts of this state. Thus it is said in King v. Hapgood, 21 Tex. Civ. App. 217-220, 51 S. W. 532, using the words of the syllabus:
“A throe-story building occupied by a debtor, who uses a portion of it for a, boarding house and loases a part for mercantile purposes, together with so much of a one-story building adjoining as has not been devoted to other jmrposes. may be claimed exempt as the residence homestead of the occupant.”
At page 220 of 21 Tex. Civ. App., page 534 of 51 S. W., language more emphatic was employed by Judge Pleasants, who delivered the opinion of the court. “That 1he three-story building,” said the learned judge, “and so much of the one-story as had not been devoted to oilier purposes, constituted the residence homestead of the appellants King and wife, there can be no question.” See Forsgard v. Ford, 87 Tex. 183, 27 S. W. 57, 25 L. R. A. 155; Harle v. Richards, 78 Tex. [410]*41080, 14 S. W. 257; Pryor v. Stone, 19 Tex. 371-374, 70 Am. Dec. 341; Lang v. Fritz (Tex. Civ. App.) 38 S. W. 233; Farmer v. Hale, 14 Tex. Civ. App. 73, 37 S. W. 164; Newton v. Calhoun, 68 Tex. 451, 4 S. W. 645. See, also, Hinzie v. Moody, 13 Tex. Civ. App. 193, 35 S. W. 832; Brennan v. Fuller, 14 Tex. Civ. App: 509, 37 S. W. 641; Billings v. Matlage, 36 Tex. Civ. App. 619, 82 S. W. 805; Malone v. Kornrumpf, 84 Tex. 454, 19 S. W. 607; Duncan v. Ferguson-McKinney Co., 150 Fed. 269, 80 C. C. A. 157, 18 Am. Bankr. Rep. 155; In re Harrington (D. C.) 99 Fed. 390; Rollins v. O’Farrel, 77 Tex.
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MAXEY, District Judge
(after stating the facts as above). The question to be determined is whether the property in controversy should be set apart to the bankrupt as his homestead. By article J 0, § 51, of the Constitution of this state, it is provided:
“The homestead in a city, town or village, shall consist of lot or lots, not to exceed in value five thousand dollars at the time of their designation as the homestead, without reference to the value of any improvements thereon; provided, that the same shall ,be used for the purposes of a home, or as a place to exercise the calling or business of the head of a family; provided, also, that any temporary renting of the homestead shall not change the character of the same, when no other home has been acquired.”
. The jealousy with which homestead rights are protected by the laws of Texas is aptly illustrated by the following language of Mr. Chief Justice Hemphill in Shepherd v. Cassiday, 20 Tex. 30, 70 Am. Dec. 372:
“The homestead is not to be regarded as a species of prison bounds, which the owner cannot pass over without pains and penalties. His necessities and circumstances may frequently require him to leave his homestead for a greater or less period of time. He may leave on visits of business or pleasure, for the education of his children, or to acquire in some more favorable location means to improve his homestead, or for the subsistence of his family; or he may intend to abandon, provided he can sell. But let him leave for what purpose he may, or be his intentions what they may, provided they are not those of total relinquishment or abandonment, his right to the exemption cannot be regarded as forfeited.”
In the present case it is insisted by the trustee, first, that the property in its entirety was abandoned by the bankrupt and his wife as a homestead; or, second, if the entire property was not abandoned, there was a partial abandonment of so much of the building as was leased or rented for boarding house purposes. Did the renting, by the bankrupt and his wife to their daughter, Mrs. Wooley, from year to year for the period from 1896 to 1907, operate, under the facts of this case, as an abandonment, for homestead purposes, of the property which had been used exclusively as a home since the erection of the building in the year 1889 ? The word “abandonment” implies desertion, relinquishment, and as applied to a homestead the abandonment, or desertion, must be coupled with the fixed intention not to return. The evidence here shows that the bankrupt and his wife, throughout the period of control of the property by the daughter, occupied a room in the house as boarders, and used the-parlors and dining rooms, hallways, and barn as other boarders, and that they had no intention of abandoning the property as their homestead. In 1907 a written lease for four years was executed to the daughter, and she in turn leased the property for the same period to Hutchins. Erom the date of the execution of this lease the bankrupt and his wife resided with their daughter, in a house across the street from the property in controversy, until November, 1908, when the two leases were canceled and they returned to the property. The referee finds as a fact that, when the bankrupt and his wife left the home, “they [409]*409did so with the expressed intention of returning thereto at the expiration of the Hutchins lease,” and that they left the property “because it had become unsuitable as a home on account of its use as a boarding house and the condition of Mrs. Presnalbs health, but with the intention to return to the same for the purpose of holding the property as a homestead against creditors.”
Does the evidence disclose an abandonment of the property for homestead purposes? The rule as to abandonment is clearly stated by Judge Hodges in Sykes v. Speer (Tex. Civ. App.) 112 S. W. 426, as follows:
“When a homestead character once attaches to property, it will continue to he the homestead till the owner voluntarily changes its character by disposing of the property, or by leaving with the intention of not returning and occupying it as a home. Baum v. Williams, 16 Tex. Civ. App. 407, 41 S. W. 840; Gunn v. Wynne (Tex. Civ. App.) 43 S. W. 292; Fyffe v. Beers, 18 Iowa, 11, 85 Am. Dec. 581. * * * Abandonment is accomplished, not merely by going away without any intention of returning at a particular time in the future, but by going away with the definite intention never to return. Foreman v. Meroney. 62 Tex. 726; Holland v. Zilliox, 38 Tex. Civ. App. 416, 86 S. W. 37; Thomas v. Williams, 50 Tex. 271. In every case abandonment is to be regarded as a question of fact, to be ascertained from all the circumstances surrounding the particular transaction. The intent of the parties in leaving the homestead is the controlling fact. Cline v. Upton, 56 Tex. 319. When no other homestead has been acquired, ‘it must be undeniably clear, and beyond almost tlie shadow at least of reasonable grounds of dispute, that there has been a total abandonment with an intention not to return and claim the exemption,’ before an abandonment will be found. Gouhenant v. Cockrell, 20 Tex. 97; Cantine v. Dennis (Tex. Civ. App.) 37 S. W. 186. The first case cited, in which the language quoted was used, has been cited with approval in numerous cases since.”
And it is said by Mr. Justice Field, in Hurt v. Hollingsworth, 100 U. S. 104, 25 L. Ed. 569:
“According to the decisions of the Supreme Court of Texas, it would appear that, in order to work a forfeiture of 1l;e right to the homestead, the owner's cessation of occupancy must bo with an intention of total relinquishment, shown by clear and decisive circumstances.”
That the renting of a part of a building for boarding house or mercantile purposes, while the owner occupies the remainder of the building as his home, does not operate as an abandonment of any part Of the structure as a homestead, has been expressly decided by the courts of this state. Thus it is said in King v. Hapgood, 21 Tex. Civ. App. 217-220, 51 S. W. 532, using the words of the syllabus:
“A throe-story building occupied by a debtor, who uses a portion of it for a, boarding house and loases a part for mercantile purposes, together with so much of a one-story building adjoining as has not been devoted to other jmrposes. may be claimed exempt as the residence homestead of the occupant.”
At page 220 of 21 Tex. Civ. App., page 534 of 51 S. W., language more emphatic was employed by Judge Pleasants, who delivered the opinion of the court. “That 1he three-story building,” said the learned judge, “and so much of the one-story as had not been devoted to oilier purposes, constituted the residence homestead of the appellants King and wife, there can be no question.” See Forsgard v. Ford, 87 Tex. 183, 27 S. W. 57, 25 L. R. A. 155; Harle v. Richards, 78 Tex. [410]*41080, 14 S. W. 257; Pryor v. Stone, 19 Tex. 371-374, 70 Am. Dec. 341; Lang v. Fritz (Tex. Civ. App.) 38 S. W. 233; Farmer v. Hale, 14 Tex. Civ. App. 73, 37 S. W. 164; Newton v. Calhoun, 68 Tex. 451, 4 S. W. 645. See, also, Hinzie v. Moody, 13 Tex. Civ. App. 193, 35 S. W. 832; Brennan v. Fuller, 14 Tex. Civ. App: 509, 37 S. W. 641; Billings v. Matlage, 36 Tex. Civ. App. 619, 82 S. W. 805; Malone v. Kornrumpf, 84 Tex. 454, 19 S. W. 607; Duncan v. Ferguson-McKinney Co., 150 Fed. 269, 80 C. C. A. 157, 18 Am. Bankr. Rep. 155; In re Harrington (D. C.) 99 Fed. 390; Rollins v. O’Farrel, 77 Tex. 90, 13 S. W. 1021; Foreman v. Meroney, 62 Tex. 723.
Counsel for the trustee refer, among other authorities, to Medlenka v. Downing, 59 Tex. 32, Wynne v. Hudson, 66 Tex. 1, 17 S. W. 110, Hargadene v. Whitfield, 71 Tex. 482, 9 S. W. 475, and Blum v. Rogers, 78 Tex. 530, 15 S. W. 115, in support of their contention that the building occupied by the bankrupt and his wife, having been rented in part for a boarding house, was thereby abandoned and lost its character as a homestead. This class of cases is clearly distinguish-, able from the one before the court. In the present case is involved but a single house, used partly for the purposes of a home, while the cases cited involved not only the home place, but other buildings erected for the purpose of being rented for mercantile or other purposes. In those cases the owner had abandoned that part of the lot or lots which contained the rented buildings and devoted .it to a purpose inconsistent with its use as a homestead. But the significant fact, remains that, in all the cases, the head of the family was permitted to retain a home. Wynne v. Hudson and others of that type are explained in Hinzie v. Moody, supra, and in Billings v. Matlage, supra.
Upon a careful consideration of the authorities the court is of the opinion, in view of the facts of this case, that the bankrupt has not abandoned the property claimed by him as a homestead. Having reached that conclusion, it is scarcely necessary to refer to the contention of counsel that, if a part of the house has been abandoned, the part so abandoned should be subjected to the payment of the bankrupt’s debts. It may be said, however, that the contention has been disposed of by the Supreme Court of this state in a case the facts of which have direct application to the one now before the court. In Forsgard v. Ford, supra, Mr. Justice Brown, as the organ of the court, propounded the question:
“Can a part of a Iiouse standing on a lot that is a homestead he subjected to forced sale under our Constitution and laws?”
The question thus stated was answered in the negative..
For the reasons stated, the order of the referee is affirmed, and the trustee is directed to set apart the property in controversy to the bankrupt as his homestead.