Henry Gillum, for use of Richard Lloyd, v. J. W. Collier and Moses Richardson, 53 Tex. 592

Gould, Associate Justice. The evidence was insufficient to establish that the instruments sued on were procured by fraud, and must have been so held by the court in giving judgment against Collier on the notes. The court, however, refused to enforce the lien claimed by plaintiffs, and evidently that refusal as to the land held by Collier was based on his claim that the land, at the time he executed the notes and contract sued on, was the homestead of himself, wife and family; the conclusion being, that it was at that time beyond Collier’s power to incumber the place.

New, if the homestead right attached to land “charged with preceding equities and incumbrances,” the husband, acting in good faith, had the right to adjust those equities and incumbrances, and in their adjustment to substitute for them a new lien. Clements v. Lacy, 51 Tex., 160, and cases there cited. Where, therefore, the husband seeks to avoid such new lien, as having been given on a homestead which was in fact free from all previous equities or incumbrances, and which he could not incumber, he should be required to establish his equitable defense with reasonable certainty.

Having, as we have seen, failed in his defense that the notes and contract were procured by fraud, Collier occupied the position of denying his own authority to create the lien which he had attempted to give, and it devolved on him to establish affirmatively that the mortgage admitted in his contract to have been then existing was in truth barred by limitation, and that his title to his homestead was so far complete in equity as to make it immaterial whether the other joint owners of the league ratified it or not.

We think that merely showing the date of the notes and mortgage given by White, and the date of White’s death, was not enough. Some further evidence should have been add need tending to negative the existence of any fact keeping the debt and mortgage alive.

As it appeared that Collier’s title to his homestead was derived from White, who was himself but a tenant in common with others, and that White’s deed to him undertook to convey specific land by metes and bounds, it certainly did not appear, in the absence of evidence showing the circumstances fully, that equity would, in the partition of the land, allot him the part which he had improved. It does not appear that this could be done with due regard to the rights of others.

The adjustment by which the other joint owners agreed to partition to him the part on which he had fixed his homestead, is not shown to have been unnecessary or unreasonable. Our conclusion in this branch of the case is, that under the evidence the court should have given judgment enforcing the lien claimed against Collier on the land held by him at the date of the contract sued on, being the land deeded to him by White, less that deeded by him to Richardson. Our opinion is that the judgment as to Richardson is correct.

Collier could not, after conveying land to Richardson, create thereon a lien binding Richardson. Richardson’s title was not a perfect legal title; but, such as it was, it was beyond Collier’s power to incumber it. The judgment as to appellee Richardson is affirmed, and the judgment as to Collier is reformed and rendered in this court in accordance with the opinion. Reformed and rendered. [Opinion delivered October 19, 1880.]