(after stating the facts as above).
It is believed that the trial court correctly decided the case; and the judgment will be affirmed, in view of the established facts. The conveyance of the lots in suit to D. B. Hambriek was, as found by the jury, merely in order “to fix a lien to secure a debt”; that is, to secure a loan from appellant bank. It is clear that the appellees at the time had a right of homestead and exemption as such in the property. They were actually residing thereon, using and occupying it as homestead. A mortgage upon a homestead “to secure a debt” of the kind in evidencé is absolutely void. Article 16, §' 50, Const. And the appellant, who was the creditor, knew, as the jury found, that the transaction was purely a mortgage in nature. D. B. Hambriek, too, knew it. D. B. Hambriek and the president of the bank admitted that they kn,ew that the property, at the time of the loan 'and before, was actually occupied, used, and claimed as homestead by appellees. The bank could not ignore the notice conveyed by the actual use of the property. In such actual knowledge, the bank may not predicate validity of the mortgage by estop-pel, especially upon the designation of lot 1, block 17, as homestead, of date with the mortgage, January 21,1924. The bank would *320be held to know that, in tlie absence of actual occupancy of lot X, the appellees could not by mere declaration substitute the lots actually used for homestead lot No. 1 not so used. Parrish v. Hawes, 95 Tex. 192, 66 S. W. 209; Dodson v. Dickey (Tex. Civ. App.) 264 S. W. 586. The rule would he different had the appellees been actually residing upon lot 1. Merchants’ & Planters’ State Bank v. Nichols (Tex. Civ. App.) 275 S. W. 84.
Further, the court was warranted in finding from the evidence, and which finding we must presume he made, that such designation or declaration of homestead was not made in real intention and purpose, but only in pretense, as all the parties knew and understood. The appellees had permanently abandoned lot 1, block 17, as their homestead some time prior thereto. The parties contemplated and understood, as the evidence goes to indicate, that the appellees were not at all intending to abandon their residence upon the lots so undertaken to be mortgaged, and their use and occupancy of the same as a home. And in the light of the evidence in behalf of appellees the bank loaned no money on the faith of such declaration, and such declaration in no wise induced the loan of the money and the taking of the mortgage. In the circumstances, the bank acquired no lien or title in the premises in virtue of the deeds to and from D. B. Hambrick. Hurt v. Cooper, 63 Tex. 362. And it is thought that, in view of the circumstances, the bank may not successfully invoke estoppel by1 judgment on the order of the bankruptcy court setting aside lot 1, block 17, as homestead. Estoppel by judgment is available only against a party to the proceedings, or those in privity with him. The bankrupt’s claim of iot 1, block 17, as homestead, when in fact and in law it was not, eliminating it as assets of the estate, was undoubtedly, in view of the evidence, a clear imposition upon the referee, and an injustice to general creditors. It amply afforded ground for revocation of his discharge upon timely application therefor. As against him the order would legally preclude a re-examination into the truth of the matter decided. Friedsam v. Rose (Tex. Civ. App.) 271 S. W. 417 (wife not a party). The law estops a person to falsify a judicial act to which he is a party, and from which he has received a benefit. The rule rests on the broad ground of public policy. Yet Mrs. Jeffries was not a party of record to the proceedings. And a judgment affecting a homestead is not binding on the wife, when she is not a party to the action. Seay v. Fennell, 15 Tex. Civ. App. 261, 39 S. W. 181; Gates v. Pitts (Tex. Civ. App.) 291 S. W. 948; Crouch v. Holterman, 272 Mo. 432, 199 S. W. 193; King v. Wilson, 95 Kan. 390, 148 P. 752. Quoting from Jergens v. Schiele, 61 Tex. 255:
“If there [were] any defense that could have been • urged growing out of her [the wife] homestead rights which would have defeated the action, then she was a necessary defendant in the cause.”
In this state the wife has an interest in the homestead property, although the title may rest in the husband, and she has a right to prosecute an action for the protection of that interest. Stallings v. Hullum, 89 Tex. 431, 35 S. W. 2. It is admittedly shown that the lots in suit, although not scheduled, had a homestead exemption which antedated, and existed at the time of, the bankruptcy proceedings, and continued uninterrupted to the date of the present trial. The title to property reserved by the state law as the debtor’s exemption does not rest in the trustee in bankruptcy, but remains in the debtor. It is expressly excluded from the assets of the bankrupt’s estate to be administered. Lockwood v. Exchange Bank, 190 U. S. 294, 23 S. Ct. 751, 47 L. Ed. 1601. The bank knew at the time of bankruptcy that there was present residence and actual occupation of the lots as homestead. There had been no abandonment of the premises as homestead, and there was, as now, actual occupation of the lots as homestead. The bank could legally acquire no valid lien or right of estoppel in virtue of the bankruptcy proceedings, 14 months after the inception of the mortgage, that the Constitution of the state would not allow. There has never been, even to the date of the trial, divestiture of the homestead character of the lots in suit. It is immaterial that the wife knew of the bankruptcy proceedings and the order, since there is no claim in the evidence that she personally participated in any active fraud in respect thereto. And considering such proceedings in the bankruptcy court in the light of an attempted renunciation by the husband of the premises in suit as exempt, still, as against the wife, such renunciation, as ground for estoppel, would not, in the circumstances, aid the bank’s purported lien. A mortgage void at origin because given on a homestead is not validated by a subsequent selection of another homestead. Inge v. Cain, 65 Tex. 75; O’Brien v. Woeltz, 94 Tex. 148, 58 S. W. 943, 59 S. W. 535, 56 Am. St. Rep. 829. As expressly held in the Inge Case, supra:
“We are of opinion that the clause quoted from the Constitution of 1876 renders all liens upon the homestead, not expressly excepted, absolutely void, and that they are not vitalized by the divestiture of the homestead character.”
It is fraud or misconduct only at “the inception of the mortgage” that estops the assertion of the homestead right. Quoting:
“Had the property been in use at the time of the disclaimer — had it been in fact a homestead — the disclaimer would have had no effect. It would have been only an attempted evasion of the law exempting the homestead from sale un*321der mortgage or execution for debt.” Kempner v. Comer, 73 Tex. 200, 11 S. W. 196.
Affirmed.