On the contrary, it is contended that where two lots have been the homestead, and the owners have removed on account of the destruction of their house by fire, it is then optional with them whether or not they will continue to claim and hold same as their homestead and a matter of their intention, and the public dealing with them may rely on their statements as to their intentions. As said in the case of Watson et al. v. City National Bank, 56 Tex. Civ. App. 140, 119 S.W. 916: "The evidence being uncontroverted that, at the time the sale under the deed in trust to Penix was made, appellants were occupying the land as their homestead, on the authority of Stone v. Darnell, 20 Tex. 11, and Griffie v. Maxey, 58 Tex. 211, they insist that the trustee's deed to appellee as the purchaser at such sale did not pass the title to the land. * * * The case cannot be regarded as supporting appellants' contention, because the lien there asserted was a statutory one, while here the lien asserted is predicated upon an express contract. * * * Looking, then, as we must, to the status of the property as it is shown by the record to have been at the time Watson borrowed the money and executed the trust deed, we think it must be held, in accordance with the finding of the trial court, that it was not then the homestead of the family, and therefore that the trust deed was not void.
This, however, would not affect a pre-existing lien executed at a time when the land had not in fact been dedicated as a homestead. Watson v. City National Bank, 119 S.W. 915. There are several assignments complaining of the refusal of the court to give special charges requested by the appellants.
The verdict of the jury is contrary to the law and unsupported by the evidence in this, that if said property had ever been the homestead of defendants they had ceased to use the same and had abandoned said property as a home on June 21, 1906, at the time the writ of attachment was served in said cause, and the same had ceased to be and was no longer the homestead of defendants. Watson v. City Natl. Bank, 119 S.W. 915, 917; Bente v. Lange, 29 S.W. 815; Lynch v. McGown, 117 S.W. 884. Scott Brelsford, for defendants in error.