The lots in controversy were sold under execution as the property of appellant and were bought by the vendor of appellee. The validity of the judgment and the regularity of the sale are not questioned. But appellant insists that he should recover back the lots because they were (as he says) a part of his homestead.

The plaintiff (appellant) was married in 1872 or 1873. He bought these lots soon afterwards. They were on the west side of the public square in the town of Burnet. They were sold by the sheriff in Hovember, 1877. They were never inclosed or improved in any way whatever. Plaintiff owned and occupied a lot on the east side of the public square. He insists, however, that he used these vacant lots for the purposes of a homestead. The only use, however, which he made of the lots was this: he occasionally staked his horse there when he did not tind better grass elsewhere.

It further appears that in 1877 the wife kept a cow. The calf generally remained in a pen in the rear of the house, but it was sometimes taken out and staked on the lots in question. This is the only use which was ever made of these lots, so far as appears in the record. In fact it does not appear that they used these lots any more than they used the other uninclosed land in the vicinity. This casual resort to property now and then cannot be said to be an appropriation of it to the purposes of a home.

The claim is too shadowy and unsubstantial to be regarded by the law. Our opinion is that the judgment should be affirmed.

Affirmed.

[Opinion adopted May 20, 1884.]