My Associates have concluded that we erred in reversing and remanding this case. Not being able to agree with them, I deem it proper, on account of the importance of the issues involved, to state the grounds of my dissent.
The majority opinion is based, in part, upon the theory that title to the land in controversy had its inception when Berry Bishop was a single man, and was therefore his separate property. This conclusion is based upon the fact that Bishop made a contract with his mother to purchase the land from her before his marriage, and the recital in the deed of love and affection.
The deed having been made after Berry Bishop's marriage, the burden was on appellee to show such facts as would amount in law to an inception of Bishop's title prior to his marriage. The evidence indicates that the contract referred to was oral, with nothing to take it out of the statute of frauds. There being no evidence to the contrary, it will be presumed that such was the fact. I do not believe that a contract, invalid under the statute of frauds, is the inception of title. I do not think that Stiles v. Hawkins, 207 S.W. 89, and the cases there cited, are authority for the contrary view, for the reason that in these cases what was held to be the inception of title were written instruments, namely, colonial contracts and acts of Legislatures.
In support of my view upon this point, I cite Akin v. Jefferson,65 Tex. 145; Buford v. Bostick. 58 Tex. 70; Votaw v. Pettigrew,15 Tex. Civ. App. 87, 38 S.W. 215; Bishop v. Lusk, 8 Tex. Civ. App. 30,27 S.W. 306. *Page 521 Title or claim to land means some legal or equitable right, which will ripen into a perfect title, upon the owner of such title complying with his contract in reference thereto, and not a mere moral obligation upon the part of some one to make him a conveyance of the land. Sauvage v. Wauhop, 143 S.W. 262, 264; Gameson v. Gameson, 162 S.W. 1169. Upon compliance by Berry Bishop with his oral contract with his mother, he could not have recovered the land form her. He would have had no little which the law would have recognized. The mere payment of the purchase money does not take a case out of the statute. Bishop did nothing which gave him any legal or equitable title to the land until after his marriage, at which time he moved onto the land, finished paying for it, and obtained a deed therefor.
The recital in the deed, "for the further consideration of love and affection," etc., is entitled to no consideration. The evidence shows that Bishop paid the contract price for the land, which presumably was its full value. There is nothing in the record to indicate that Mrs. Williams was influenced, either in the original agreement or in the execution of the deed, by her love for Berry Bishop. On the contrary, she testified:
"When I state in the deed that I conveyed it to him for the consideration of work done and love and affection, that is carrying out my agreement with him that I would let him have the 80 acres for helping me pay the notes."
He paid them in full, supported his mother and family while he was doing so, and turned over to her, when his contract was completed, the teams and tools on hand and $200 in money. If the land was community property, the gift of the same to his mother, it not being made to appear that there was any other community estate out of which to compensate his wife for her interest therein, or out of which the family could receive support, was a fraud on the community estate of the wife. Smitheal v. Smith, 10 Tex. Civ. App. 446, 31 S.W. 422; Cetti v. Dunmon,26 Tex. Civ. App. 433, 64 S.W. 789; Watson v. Harris,61 Tex. Civ. App. 263, 130 S.W. 241.
The majority opinion herein holds that, though the land was the homestead of Bishop and wife when the first deed was executed, "nevertheless, if thereafter and by reason of abandonment it ceased to be homestead, the deed referred to (the first deed) became operative and reinvested title in her (Mrs. Williams). Marler v. Handy, 88 Tex. 428,31 S.W. 636; Stallings v. Hullum, 89 Tex. 431, 35 S.W. 2; Anderson v. Carter, 69 S.W. 78."
I do not so understand the law. Nor do I think that the authorities cited support the proposition that, upon the abandonment of the homestead, the deed became effective "as a conveyance" to invest the grantee with title. Such a deed is void, and can never become effective to invest the grantee with any title to the land. It is true that in Anderson v. Carter, supra, the effect of abandonment is referred to as making the deed "operate as a conveyance." But under the facts of that case this language meant no more than that appellant could not recover the land after its abandonment as a homestead, for the reason he was estopped by his warranty deed, and by the further fact that he had subsequently acquired another homestead. His wife was not a party to the suit. In addition to this, he never had any homestead right in the land sued for. Hence it may be assumed that the court was not careful in the use of the language referred to.
In Marler v. Handy, supra, Mr. Justice Brown said that the deed to the homestead, executed by the husband alone, was not "void," but added that the property "could not be recovered by the husband, because he would beestopped by the deed" (italics mine), and it could not be recovered by the wife, because her homestead right ceased when her husband acquired, and she removed with him to, another homestead.
In Stallings v. Hullum, supra, the court, of which Judge Brown was a member, speaking through Chief Justice Gaines, explains that what was meant in Marler v. Handy was that "the deed was not so far void as to prevent it from operating by way of estoppel against the husband." A deed absolutely void may have this effect. In the case last cited, Judge Gaines cites the Constitution to show that the conveyance of the homestead by the husband alone is prohibited by law, and adds: "What is prohibited by law is as clearly invalid as if it had been declared void."89 Tex. 434, 35 S.W. 3. "Void" and "invalid" are synonymous terms. That which is void can never become valid, and what is never valid is void. Inge v. Cain, 65 Tex. 79. Therefore the subsequent abandonment of the homestead cannot validate a deed to the same, which was void for want of the wife's signature when the same was executed.
It may be asked what is the difference between the husband being estopped by his deed and the deed operating as a conveyance of his title? The difference is very material as affecting the right of the wife. The deed being void, it conveys no estate in the land. As was said in Stalling v. Hullum, supra, 89 Tex. 435, 35 S.W. 4, it could not "in the slightest manner affect her rights." What are the rights of the wife to a homestead? Not the mere privilege of possession and enjoyment, but a vested estate in the land, which the husband cannot convey without her joining in the deed, even though it be his separate property. The estate in the homestead is not that of joint tenancy, but an estate in entirety, vested in two persons, the husband and wife, who are regarded in *Page 522 law as one person, and, unless both have conveyed it, neither has conveyed it. Campbell v. Elliott, 52 Tex. 159; Stallings v. Hullum, supra. Such being the law, the wife can recover both the possession and title of the homestead against one claiming under a deed from the husband only. This was the exact point decided in Stallings v. Hullum, supra. In that case, the signature of the wife having been obtained by fraud, it stood as though she had not signed the deed. The trial court held that "the deed was void and inoperative as to the wife," but was valid as to the husband, and operated to transfer his one-half interest therein as soon as it should cease to be the homestead of the wife. The Supreme Court said, "We are of the opinion that the judgment is erroneous" (89 Tex. 433, 35 S.W. 3), and consequently reversed the judgment of the trial court and the Court of Civil Appeals, and rendered judgment in favor of Mrs. Stallings, as prayed for, which was to cancel the deed executed by her husband to their homestead.
If a husband should bring suit to recover a homestead, to which he had executed a deed without being joined therein by his wife, the defendant could read such deed in evidence, which, being sufficient on its face to convey the land, would be a complete defense, in the absence of evidence that the deed was void. He would not be permitted to prove that it was void for the reason that the land was his homestead at the time the conveyance was executed, because he would be estopped from doing so by his deed. But no such consequence would follow upon the offer of such proof by the wife, for one person cannot be estopped by the deed of another. May the suit of the wife for the recovery of a former homestead fail in any case where she did not join in the deed? Yes. If she has acquired another homestead. This upon the ground that her title is a homestead title, and, as she cannot have two homesteads at the same time, her title to the former homestead ceases when she acquires a new one.
What amounts to an abandonment of a homestead is a different question from the right of the wife to recover or retain a homestead, when a deed to the same was executed by the husband alone, before the abandonment of the same. Also a suit to enforce specific performance of a contract to convey the homestead, made by the husband alone, presents a different question from a sale of the homestead by the husband alone, for which reason the case of Hudgins v. Thompson, cited in the majority opinion, is not in point in the instant case, in so far as the effect of the first deed to Mrs. Williams is involved herein.
A contract by the husband to convey the homestead at a future time is not void, for the reason that, if the property is not the homestead at the time such contract is sought to be enforced, the fact that it was a homestead when the contract was made presents no obstacle to its enforcement. Brewer v. Wall, 23 Tex. 585, 76 Am.Dec. 76; Cross v. Everts,28 Tex. 535; Wright v. Hays, 34 Tex. 261; Allison v. Shilling, 27 Tex. 454,86 Am.Dec. 622. The distinction between a deed to the homestead, executed by the husband alone, which is void, and a contract to convey the homestead at some future time, executed by the husband alone, which is not void, is pointed out in Campbell v. Elliott, 52 Tex. 158.
As to whether the husband, when acting in good faith, can or cannot abandon the homestead without the consent of the wife was not a material issue in Hudgins v. Thompson, for the reason that it clearly appeared that a new homestead had been acquired, to which the wife had voluntarily removed, and was living thereon when the case was tried. In addition to this, she had abandoned the former homestead by executing a deed thereto to another party, in the manner provided by law.
I will now discuss the question of the abandonment of a homestead. What facts are sufficient to show such abandonment? What evidence is sufficient to sustain a finding that such facts exist?
I concede that a homestead may be abandoned before another is acquired. This would be the case where the husband abandoned the homestead with the consent of the wife. In Smith v. Uzzell, 56 Tex. 315, it is said that the husband may abandon the homestead, if "he acts in good faith and notagainst the will of the wife." (Italics mine.) I will not dogmatically assert that no case could arise in which it would be held that the husband could not abandon the homestead against the will of the wife without acquiring a new homestead; but, if so, such a case would have to embrace facts peculiar to itself. So far as I am aware, it has never been so held in any case in this state. The contrary was held in Myers v. Evans, 81 Tex. 317, 16 S.W. 1060, and in Gibbons v. Hall, 59 S.W. 815. In each of these cases the intention of the husband to abandon the homestead was conclusively shown by his executing a deed to the same. In neither of these cases was any other homestead acquired, and the wife objected to the abandonment of the homestead. In each case the wife had left the homestead, and in the latter case willingly, but not with the intention to abandon the same.
The majority opinion cites in support of the conclusion therein reached that a husband, if he acts in good faith, may abandon the homestead without the consent of the wife, and against her will: Hudgins v. Thompson, 211 S.W. 586; Gouhenant v. Cockrell, 20 Tex. 97; Shepherd v. Cassiday, 20 Tex. 24, 70 Am.Dec. 372; Woolfolk v. Ricketts, 48 Tex. 28; Scott v. Dyer, 60 Tex. 139 *Page 523 ; Reece v. Renfro, 68 Tex. 194, 48 S.W. 546; Jordan v. Godman, 19 Tex. 273; Smith v. Uzzell, 56 Tex. 215; Slavin v. Wheeler, 61 Tex. 659; Inge v. Cain, 65 Tex. 81; Wynne v. Hudson, 66 Tex. 9, 17 S.W. 113; Rockwell v. Hudgens, 57 Tex. Civ. App. 504, 123 S.W. 186; Stewart v. Pritchard,101 Ark. 101, 141 S.W. 505, 37 L.R.A. (N.S.) 807.
I have already sufficiently discussed Hudgins v. Thompson. As hereinbefore stated, no deed to the homestead was made in that case.
In Gouhenant v. Cockrell and in Shepherd v. Cassiday the issue of the wife's consent to the abandonment of a homestead was not involved. It is not made to appear that Gouhenant had a wife, nor that Mrs. Cassiday had a husband.
In Woolfolk v. Ricketts, Reece v. Renfro, and Slavin v. Wheeler a new homestead had been acquired.
In Smith v. Uzzell, supra, the court said:
"In the absence of evidence to the contrary, it ought to be presumed, when a removal from a homestead is made, that it was with the consent of the wife."
This is a common-sense as well as a legal presumption, for, taking into consideration the relation between husband and wife, it ought not to be presumed that a matter so important to the family as the abandonment of the home was made against her will, and, if not in accordance with her judgment, that she yielded to what she considered the superior judgment of her husband in the matter.
A legal presumption, until met by some testimony tending to rebut the same, is of as much force as the uncontradicted positive testimony of an impartial witness. Applying this presumption, together with the facts and circumstances in evidence, it is made to appear that the wife did consent to the abandonment of the homestead in Scott v. Dyer, Jordan v. Godman, Smith v. Uzzell, Inge v. Cain, Wynne v. Hudson, and Rockwell v. Hudgens, supra.
While it does not appear that anything was done in Inge v. Cain, supra, contrary to the wishes of the wife, that case presents a different phase as to abandonment. There the land in controversy was a business homestead. A business homestead is such only while used by the head of the family as a place of business. A wife could not compel her husband to continue his business. When he abandons the business, the place automatically ceases to be a business homestead. The restraint upon alienation is the same as to a business and a residence homestead; that is the wife must join in the conveyance. What amounts to abandonment is different. The wife's wishes as to the abandonment of a business homestead are immaterial.
Thus it will be seen that, whatever dicta may be found in these cases, as to the authority which a husband might be held to have to abandon the homestead, under a possible state of facts, against the will of the wife, and without obtaining another homestead, neither of the cases cited in the majority opinion is authority for the proposition, for the reason that no such issue was presented by the facts in either of such cases. In Marler v. Handy, 88 Tex. 421, 31 S.W. 636, a new home was acquired. Marler left the old homestead after he deeded the same, subsequently "living in other places as a home, as comfortable as the old home, for eight years." 88 Tex. 425, 31 S.W. 638. In Portwood v. Newberry the wife willingly abandoned the home. 79 Tex. 340, 15 S.W. 270.
Whatever may be said in favor of the right of a husband to abandon his homestead without the consent of his wife, such abandonment must be in good faith on his part. This is conceded in the majority opinion herein. The fundamental error in that opinion, if all else therein be conceded as correct, is that the mere fact that, if the husband believed that such abandonment was for the good of the family, this is conclusive evidence of his good faith; and the fact that he did abandon the homestead is conclusive evidence that he so believed, without his saying so, and without any evidence tending to show the reasonableness of such belief. He who asserts that the homestead was abandoned, and rests his case upon the good faith of the husband, must prove such good faith. Berry Bishop is not shown to have ever said that he believed his abandonment of the homestead, if he did abandon the same, was for the best interest of his family, and the facts and circumstances in evidence do not indicate such belief. It will not do to rest such belief upon the surmise, as is done in the majority opinion herein, that, after supporting his wife and children on his farm for 14 years, he had concluded that it was too small for such purpose, and that it would be for the best interest of himself and family to buy a larger farm, when he did not buy another farm, or try to do so, and there is no evidence that he could have done so without selling his homestead. He did not sell or offer to sell the same, but gave it away, and thereby, as the evidence seems to indicate, pauperized himself and family. Nor will it do to rest the evidence of good faith upon the supposition that, after having been a reasonably successful farmer all of his life, after arriving at manhood he concluded that he could do better in some other business or vocation, when the evidence shows that the only business he followed after leaving the farm was that of a day laborer.
Belief on the part of Berry Bishop that it was for the best interest of his family to abandon his homestead is contradicted, not only by all of the circumstances attending *Page 524 such abandonment, but by his sworn testimony in this ease that he never intended to abandon the same. I think that when a husband attempts to abandon the homestead against the will of the wife, and without obtaining another homestead, in order to bar her homestead rights, it is not enough that he believes he is acting for the best interest of his family, but he must have some reasonable ground for such belief. The homestead law is for the protection of the wife and children against the improvidence of the husband, as well as against the greed of creditors. Otherwise, it would have been sufficient to protect the homestead from forced sale, without requiring the wife's signature to a conveyance thereof. Even in the matter of selecting another homestead, some regard must be had to the welfare of the wife. Haymond v. Haymond, 74 Tex. 420, 12 S.W. 90.
I think that this case should be reversed and remanded for the reasons:
1. The first deed to Mrs. Williams was void, and the subsequent abandonment of the homestead, if it was abandoned, did not make it effective to convey the wife's homestead right, which was a vested estate in all of the land.
2. If the land was community property, as I think it was, the gift of the same to his mother, under the circumstances of this case, was a fraud upon the community rights of the wife.
3. The evidence is not sufficient to sustain a finding, if it was so found, that Berry Bishop intended to abandon the homestead.
4. The evidence is not sufficient to sustain a finding, if it was so found, that Berry Bishop, in abandoning his homestead, if he did abandon it, acted in good faith as to the homestead rights of his wife.
In the two next preceding paragraphs of this opinion, referring to supposed findings of the trial court that Berry Bishop abandoned his homestead, and that he did so in good faith as to the homestead rights of his wife, I have indicated a doubt as to whether such findings were made.
The court made no specific findings of fact. The record seems to indicate that he gave judgment for the appellees upon a mistaken idea as to limitation. He might have done so under the issues raised by the pleadings. Limitation was not originally pleaded by appellees. The court propounded to Bishop a question, the answer to which might show that Mrs. Williams had held possession of the land for more than 10 years through Berry Bishop as her tenant. Appellants objected to the question, for the reason limitation had not been pleaded. The court permitted appellees to amend and plead limitation, over objection of appellants, and thereupon gave judgment for appellees, without assigning any reason therefor in the judgment, and without filing any findings of fact or conclusions of law.
I am not unmindful of the rule that, if a judgment of a trial court can be sustained upon any issue raised by the pleadings and the evidence, it is the duty of the appellate court to do so. This is a wholesome rule of procedure, but not necessarily binding upon the appellate court, under all circumstances. In the instant case, where there is good reason to suppose the court would have rendered the judgment which it did render, without finding that Bishop abandoned his homestead, and especially without finding that such abandonment was in good faith, when I do not believe that any intelligent court or fair-minded jury would have so found, had these specific issues been submitted, I am constrained to believe that the court did not base its judgment upon issues so wholly unsupported by the evidence.
There is nothing in the record to support a finding that Bishop intended to abandon his homestead, except his statement to that effect made to Mr. Woodward, when the matter of an oil lease was being discussed. Mrs. Williams desired to sell an oil lease on the land in controversy, and Bishop seems to have been aiding her in her efforts. Woodward would not approve Mrs. Williams' title, because Bishop was living on the land when he executed the deed to her. A lease from Bishop would not have been approved, on account of the record title being in his mother. In reply to an inquiry from Woodward, he stated that, when he left his homestead, he did so with the intention of never again living on the place. Thomas v. Williams, 50 Tex. 275. In opposition to this is the fact that it was not shown that he made such intention known to his wife (Brewery Ass'n v. Walker, 23 Tex. Civ. App. 6, 54 S.W. 360), or to any one else, except to Mr. Woodward under the circumstances mentioned, and no reason is shown why he would probably have desired to permanently abandon his home. As to his voting in the Coleman city precinct, he had the right to do so, if he had actually resided there with his family for more than six months before the election, though he intended to afterwards reside on his homestead.
I do not believe that Bishop told the truth when he made the statement to Woodward that he left his home with the intention of not again residing there, and I do not think that the trial court believed this statement. Especially I do not believe that the trial court found that Bishop abandoned his home in good faith as to the homestead rights of his wife. There is no evidence in the record that Bishop ever said he thought such abandonment was for the best interest of himself or family. There is no evidence of any facts or circumstances showing that he might reasonably have so believed. He did not *Page 525 afterwards sell or attempt to sell the homestead, and thus acquire funds with which he might have bought another homestead, or have used the proceeds in support of his family, or have gone into business; but he gave it away. There is no evidence that he had any other property, or any income, except that derived from his daily labor.
In this connection, it must be remembered that not only was the burden of proof on the appellees to show abandonment of the homestead, which includes both the intent to abandon, at least upon the part of the husband, and also his good faith in the matter, but also such facts must be proven, not by a mere preponderance of the evidence, but by evidence which admits of no other reasonable conclusion. Shepherd v. Cassiday,20 Tex. 25, 70 Am.Dec. 372; Gouhenant v. Cockrell, 20 Tex. 96; Thomas v. Williams, 50 Tex. 274; Ross v. McGowen, 58 Tex. 605; Cross v. Everts,28 Tex. 534.
I do not think the evidence in this case measures up to this standard. In other words, I do not think the evidence of abandonment is of the conclusive character which the law requires to show abandonment of a homestead, admitting, as we should admit in support of the judgment herein, that every word of the testimony in favor of appellee is true. In Smith v. Uzzell, supra, the court said:
"If, however, the husband, in fraud of the right of the wife and without her consent, should seek by an abandonment to withdraw the homestead from the pale of its exemption given for the benefit of the family, he could have no power to do so."
But, if the majority decision herein is the law, he would have such power. If the wife should refuse to sign a deed to the homestead, the husband might leave the premises and go to a boarding house, declare that he had no intention of again living upon the place and thereafter execute a valid conveyance of the homestead. This would certainly be true, if his intention to abandon the homestead constituted abandonment, and his act in leaving with such intention was conclusive proof of good faith to his wife in the transaction. In Wynne v. Hudson, supra, the court said:
"If the act of the husband be intended to violate the right of the wife, and to deprive the family of a home, she is not without remedy for the protection of the family."
But, if the majority decision herein is the law, she is without remedy. It would avail her nothing to refuse to leave the place, for the only effect of this would be to show that she did not consent to the abandonment of the home. Under the doctrine announced in the majority decision, such consent is not necessary to constitute abandonment of the homestead. If the husband can do indirectly that which the law forbids him to do directly, the homestead right of the wife is a delusion, and the makers of our Constitution labored in vain when they placed therein a provision for the protection of such rights.
The writer of the majority opinion makes some criticisms of the appellants' assignments, which I do not think are sound; but as these are submitted as his individual views, and not as the views of the court acting through the majority, I do not deem it necessary to reply to them.
For the reasons stated, I am of the opinion that this case should be reversed and remanded, both for the reason that the facts should be more fully developed, and that there should be specific findings upon the issues raised by the pleadings.