On Appellants' Motion for Rehearing. On April 1, 1920, the Chief Justice and the writer, constituting a majority of the court, granted appellees' motion for a rehearing, set aside the former judgment and opinion of this court, and affirmed the case. Several days later Mr. Justice JENKINS filed a dissenting opinion, and appellants have filed a motion for rehearing. Upon a careful consideration of this motion, the Chief Justice and the writer have concluded to adhere to our last opinion, and to overrule the motion; and it is desired to briefly supplement the former opinion. The writer regrets that time will not permit a more extended consideration of the able dissenting opinion of our Associate, which its strength deserves.
In the opinion of the Chief Justice, the several assignments of error in appellants' brief are set forth substantially, and it is stated that, in his opinion, the questions of Berry Bishop's intention to abandon the homestead, and his good faith in so doing, are not presented to this court for decision. I desire now to expressly concur in that conclusion, as I do not believe that any of the assignments present either question.
Upon the holding made in the majority opinion that the land was the separate property of Berry Bishop, because his title had its inception before his marriage, we adhere to that conclusion. Mr. Justice JENKINS undertakes to distinguish the authorities cited in the majority opinion, upon the ground that the contract between Berry Bishop and his mother was in parol and void under the statutes of fraud, and therefore could not be the inception of title. His reasoning is that Berry Bishop's rights thereunder were founded only on a moral obligation, and gave him no title, either legal or equitable, prior to his marriage. We are of the opinion that the position is not sound, because the fact that the contract was originally oral was, in any event, *Page 526 rendered immaterial when Mrs. Bishop recognized compliance by her son with his contract, and made him a deed to the land. The statute of frauds provides that no action shall be commenced upon a contract for the sale of real estate, unless it is in writing and signed by the party to be charged therewith, or by his authority. It does not render a parol contract void. Under the facts of this case, the statute was intended for the benefit of the vendor, and Mrs. Williams could and did waive the benefits thereof. Therefore we think the statute of frauds does not affect the question, and that Berry Bishop's title had its inception while he was a single man, and that the land became his separate property. Upon the abandonment of the homestead, the deed which he made to his mother during his marriage became effectual to pass title to her.
We are further of the opinion that the second deed made by Berry Bishop to his mother invested her with title. Certainly this is true if the land was his separate property, and he had in good faith effected an abandonment of the homestead. If it was community property, assuming a prior valid abandonment, it was effectual to pass title to his mother, because of the considerations and obligations to his mother and his relationship to her, by virtue of which he had sought to vest title in her by the first deed.
In the dissenting opinion, it is sought to be shown that the majority were in error in holding that, although the land was the homestead of Bishop and wife when the first deed was executed, nevertheless, if thereafter it ceased to be homestead by abandonment, the first deed became operative and reinvested title in Mrs. Williams. The authorities cited by the Chief Justice are said to be distinguishable, and that Stallings v. Hullum, 89 Tex. 431, 35 S.W. 2, is authority for the proposition that a conveyance of the homestead by the husband only would not pass title as to the interest of either and that the wife could recover the land. We call attention to the fact that in that case Chief Justice Gaines, after discussing some of the cases cited in the majority opinion, concluded the opinion with this statement:
"The fact that it was held in those cases that the deed was not so far void as to prevent it from operating by way of estoppel against the husband when the wife's interest may cease does not justify the conclusion that it was to have any operation whatever so long as her right of homestead in the property should continue to exist."
In that case the wife's rights in the homestead had never ceased. No abandonment had been effected, and the wife sued to recover the homestead which her husband had sought to convey in fraud of herself; she being deceived when she signed and acknowledged the deed. The case was one of alienation of the homestead, and not abandonment, and the quotation above strongly indicates the view of the Supreme Court that a deed to a homestead made by the husband alone might become operative as to both husband and wife, when the wife's interest in the homestead should cease to exist. In case a lawful abandonment is made by the husband, the wife's homestead rights then cease to exist, and there is nothing to prevent the original deed becoming operative, under the principles announced in the cases cited in the majority opinion. Especially would this be the case where the property is the separate estate of the husband.
Justice JENKINS concedes that the wife could not recover her estate or interest in a former homestead, where she did not join in the deed, in case another homestead had been acquired. This upon the theory that she cannot have two homesteads at the same time, and that her title to the former homestead ceases when she acquires a new one. We cannot see why the same result would not ensue when the husband, in good faith, has abandoned the former homestead. The wife's title to the former homestead then ceases without the acquisition of a new homestead, as held by the Supreme Court in a long line of decisions.
We are willing to concede that the husband's deed to the homestead can never alone become operative to convey the title, so long as the wife's interest in the homestead continues; but when it ceases to exist, either by the acquiring of a new homestead or by a good-faith abandonment, we are convinced that the deed becomes effectual.
In the dissenting opinion it is further stated that the record seems to indicate that the trial court based the judgment upon the mistaken idea of limitation. We find in the record no warrant for that conclusion, and no reason for not applying the rule that, where the judgment of the trial court may be sustained upon any issue raised by the pleadings and the evidence, it should be upheld by the appellate court.
Finally, we do not share the apprehensions of our Associate that we have, by indirection, destroyed the constitutional protection of the homestead. In Hudgins v. Thompson, Mr. Justice Greenwood, speaking for the Supreme Court, clearly drew the distinction between the constitutional restraints upon alienation of the homestead and the right of the husband to effect an abandonment which would conclude the wife, without the acquisition of another homestead. We think the question has been set at rest by this late pronouncement of our Supreme Court, and, if we have erred, it has been in deference to the decisions of the court of last resort. One further word for myself, in this *Page 527 important case. I gave my concurrence to the original decision and opinion upon the belief that it was the law of this state that the husband could not, in good faith, abandon the homestead without at least giving the wife some notice of his intention in leaving the homestead, or of the effect of his or her acts, in leaving it, upon her homestead rights. A careful study of the decisions has convinced me that this view is erroneous, and that it is now the settled law of the state that the husband, by reason of his paramount authority as the head of the family, has the power to abandon the homestead without consulting or even notifying the wife of his intention, provided he acts in good faith in so doing. Good faith, to my mind, now means nothing more than that he must act honestly towards the wife, and for what he deems to be the best interest of his family, even though he may be mistaken in judgment, and although it may result in not acquiring at any future date another homestead.
Appellants' motion for rehearing is overruled, to which Mr. Justice JENKINS dissents.
Motion overruled.