F. M. Buchanan et ux. v. Simeon Hart, 31 Tex. 647

Caldwell, J. —Counsel for plaintiffs in error concede the only point in the case, upon the axiomatic principle that a trust shall never fail for want of a trustee. (Story’s Eq. Jur.) If, in the execution of a trust, the trustee should invade the homestead rights of plaintiffs in error, his remedy would be by a direct proceeding to restrain the trustee. We cannot presume (for it nowhere appears) that the plaintiffs in error now occupy as a homestead the land embraced in the trust deed.

This must appear by averments and proof, to raise the issue, whether or not a married woman can legally divest herself of the homestead by deed of trust. It is assigned as error that the costs of suit were taxed against the plaintiffs in error. We are of opinion that this was error, but not such a one as to justify a reversal. The judgment is reformed to the extent of taxing the costs to the defendant in error, to be paid out of the trust fund, and in all else it is Affirmed.