The appellants urge that they were legally entitled to the relief of cancellation of the administrator's deed, as constituting a cloud upon the title to the land, because it was conclusively proven that, at the death of their father, Riley Greene, the land was his homestead in fact, and a minor son, a constituent member of the family, survived the owner of the homestead, and the debt for which the land was sold to pay was a simple debt of the decedent's. Such recited facts appear agreed to by the parties. It is the established rule in this state that, in virtue of the Constitution and laws, the homestead on the death of the owner descends and vests absolutely in the heirs if a constituent member of the family survives, and is not assets in the hands of the administrator subject to the payment of the simple debts of the decedent. Section 52, art. 16, Constitution; Cameron v. Morris, 83 Tex. 14, 18 S.W. 422; Zwernemann v. Von Rosenburg, 76 Tex. 522, 13 S.W. 485; Childers v. Henderson,76 Tex. 664, 13 S.W. 481; Lacy v. Lockett, 82 Tex. 190, 17 S.W. 916; Roots v. Robertson, 93 Tex. 365, 55 S.W. 308; Allen v. Ramey (Tex.Civ.App.) 226 S.W. 489; Cline v. Niblo (Tex.Civ.App.) 286 S.W. 298; Id. (Tex.Com.App.) 292 S.W. 178; and other cases. The law being as thus stated, the appellants may not legally be denied the relief sought unless grounds further and independently exist as a legal or equitable reason therefor.
It is asserted that there was no probate order setting apart the homestead for the use of the minor, and that the probate proceedings being regular and in form, vesting the land in appellee, the same may not be attacked collaterally. The order setting apart the homestead for use operates merely upon possession of the land, as between the heirs. The actual setting apart of the homestead in fact by the probate court is not essential to the vesting of the title thereto in the heirs. Bonding Co. v. Logan, 106 Tex. 306, 166 S.W. 1132; Id. (Tex.Civ.App.) 167 S.W. 771; Griffie v. Maxey, 58 Tex. 210; Scott v. Cunningham, 60 Tex. 566. The absence of such order does not affect the exemption of the homestead from the simple debts or the rights of those owning it. Simms v. Dixon (Tex.Civ.App.) 65 S.W. 36. The exemption of the homestead from ordinary debts is absolute. Dorman v. Grace, 57 Tex. Civ. App. 386, 122 S.W. 401. The land, as shown, being homestead in fact, it did not become a rightful subject-matter of administration. The debt owing by the decedent as admitted was an ordinary and simple debt, and not a lien upon the property. The administration was at the instance, and its object was the special benefit, of appellee, in order to have sale of the land to pay an ordinary and simple debt owing by the decedent. No other ground was urged for the administration. Therefore the order of the probate court directing the sale of the land was void for lack of power to make it, and the sale could be attacked collaterally. Allen v. Ramey (Tex.Civ.App.)226 S.W. 489; Cline v. Niblo (Tex.Civ.App.) 286 S.W. 298. Appellee could not acquire any title under a legally void sale by the administrator. It may be observed in this connection, although the fact seems not to have been brought to the attention of the trial court, that the land was the community property of Riley Greene and his wife, who died before Riley Greene died. Her interest was in no wise *Page 623 liable for the subsequently contracted debt of Riley Greene.
It is next urged that the judgment is supported and cancellation of the deed was properly denied upon the ground of estoppel arising from the conduct of the appellants. This point seems to have been stressed before the trial court as controlling the case. As the facts appear in the present record, however, it is believed that laches amounting to an estoppel may not be imputed to appellants in bar of the relief sought. While the minor, Solomon Greene, removed from the premises shortly after the death of his father, yet, as admitted, "he claimed it (the premises) as his homestead and kept his belongings there." The title appellants had in the premises vested absolutely at once upon the death of their father, and was in no wise dependent upon their continuing to reside upon and actually use the premises. So far as appears, appellants did no positive acts, nor made any representations respecting the probate proceedings, inducing the sale of the land to appellee. It is merely shown as follows:
"That at the time of the administration of the said estate and of the sale of the land the plaintiffs had notice of all the proceedings, and none of them made any manner of claim for any of said property, and made no application that any of said property should be set aside to the minor, Solomon Greene, or that any of same was exempt as a homestead."
It cannot be said that the heirs undertook to have the debt of their father paid that way. The mere failure to object to the proceedings could not be construed as having that effect, or as ratifying the sale of the land for that purpose. The position of appellee in nowise changed before or after the purchase. It merely bought the land for its debt. Quoting from Paul v. Willis, 69 Tex. 261, 7 S.W. 357:
"A void judgment cannot bind any one, and it is well settled [that] it may be collaterally attacked. Lapse of time cannot aid it or give it any force as a judgment. These administrations being nullities, the heirs of Byrne forfeited no right by failing to set it aside or by delay in suing for the land."
As well established, an administrator's sale of property not belonging to the debtor will not estop the owner from asserting his title. And especially under the circumstances of the instant case it would contravene the policy of the law, in respect to the descent of the homestead, to impute laches to the minor son.
The judgment is reversed, and judgment is here entered in favor of appellants in cancellation of the administrator's deed, as prayed for. The costs of the appeal and of the trial court will be taxed against the appellee.