Moore, Chief Justice. It is unnecessary to inquire into the origin or character of appellees’ right to the lots in controversy in this case, for whether they are community property or separate estate of Mrs. Smith, the legal title to them, it cannot be denied, was at the institution of this suit in appellants. Unless, therefore, the evidence was sufficient to authorize the court to divest this legal title out of appellants, and vest it in appellees, or one or the other of them, if this had been asked, the judgment must be reversed.

The fact that parties may establish a homestead on property which they hold [by mere equitable title in no way tends to subordinate the legal title to their mere equitable right. But then homestead right is dependent upon their title, and must stand or fall with it.

It is therefore immaterial that appellants were chargeable with notice that appellees were occupying the lots as a homestead at the date of the deed of trust under which appellants acquired their title, unless the trustee and cestui que trust were chargeable at the date of said deed with notice of appellees’ superior equitable right to the lots against Fleishel, in whom the legal title then stood. But such an inference is not warranted by the facts. Both Fleishel, the grantor in the deed, and appellee, B. K.

Smith, on inquiry being made of them, positively averred that the property belonged to Fleisbel, which, under the authority of Ranney v. Miller, 51 Tex., 263, rendered inquiry of Mrs. Smith unnecessary; but if inquiry of her was necessary, she in effect made the same admission by her joinder in the deed of trust. Under these circumstances, to divest appellants of their legal title, acquired for a valuable consideration on the faith of these decía- '• rations and admissions, in favor of the parties making them, would work a gross and palpable fraud. The judgment is reversed and the cause remanded.

Reversed and remanded. , [Opinion delivered December 14, 1880.]