Since this cause was before this court at the last term, the pleadings for the defendants have been so amended as to set up the payment of the purchase money at the sale made by the sheriff.

Proof of such payment, and the amount thereof, was made upon the last trial, and an instruction asked to the effect that, if the jury found the property for the plaintiffs under their homestead claim, then they would find for the defendants against R. A. Upton for the sum so paid, with interest from time of payment at rate of eight per cent, per annum. This instruction was refused. It was error to refuse this instruction. Stone v. Darnell, 25 Tex. Sup., 435; Howard v. North, 5 Tex., 316; Andrews v. Richardson, 21 Tex., 287; Burns v. Ledbetter, 56 Tex., 286.

Upon the recovery of the property which W. B. Cline, now de*29ceased, hád bought and paid for, with money which went to discharge in part the execution against Upton, the administratrix would be entitled to recover that sum with interest.

In view of all the evidence in the case, we are of the opinion that the court below would have been authorized to grant the motion of the appellants for a new trial; and as the case has to be reviewed, upon another' trial the jury should be instructed to look to all the facts and circumstances in evidence in the case, to determine whether or not the removal of appellees, and their protracted absence from the property, was with intent no more to live upon it; and as bearing upon this question the evidence of the appellees as to their intention is admissible. Wharton’s Law of Evidence, 482, 508; Fisk v. Chester, 8 Gray, 506.

Reversed and remanded.

Reveesed and eemanded.

[Opinion delivered February 23, 1883.]