The opinion
A former appeal of this case is reported in 220 S.W. 371 , David E. O'Fiel v. Zeke Janes, but my brethren have not referred to that opinion nor discussed it though the case went to the *Page 1085
Supreme Court on petition for writ of error, which was refused. As I understand the opinion of my brethren, they have overruled our former opinion in two respects:
(1) They now hold that the evidence on this appeal, as a matter of law, establishes an abandonment by Zeke Janes and wife of their homestead claim to the land in controversy. As I understand, the facts on this appeal are practically identical with the facts on the former appeal, where we held that this question was one of fact.
(2) They now hold that the executory sale by Zeke Janes and wife of the land in controversy to Kinard, as a matter of law, destroyed the homestead rights of Zeke Janes and wife in the land so conveyed, and that they could acquire a new homestead claim to the same only by a rededication of it to homestead purposes. On the former appeal, we held that the sale did not constitute an abandonment of the homestead claim.
To some extent, at least, the two propositions on which my brethren have overruled our former opinion were involved in the petition for writ of error sued out in this case, and to some extent must have been considered by the Supreme Court in refusing the writ. Believing that the case was correctly decided on the former appeal, I most respectfully dissent from these conclusions now announced by my brethren.