In this ease, a jury was waived, and the special judge presiding below placed upon the record the reasons upon which he based his judgment. If this practice were more general, it would in many cases save both counsel and the revising court the delay and trouble of an examination over points upon which, had they been thus shown, perhaps there would have been no further contest.
It is shown by the statement of facts that the debt sought to have been secured by the trust deed originated in a commercial transaction entered into by the surviving husband, Charles H. Jordan, after the death of the first wife, Caroline E. Jordan, and who was the mother of the two minor defendants, Charles and Erederika Jordan, and with which transaction the community estate was in no way concerned.
The validity of the trust deed must depend upon the power of the surviving husband to incumber the property in controversy, considered (1) as community property and (2) as the late homestead of himself and his deceased wife.
We will first dispose of the question of his power to incumber it, considered simply as community property.
Charles II. Jordan, as surviving husband, sought to qualify as such under section 33, act of August 15,1870, prescribing the mode of proceeding in the District Courts in matters of probate, (Paschal’s Dig., art. 5494,) and which reads as follows: “ Whore the wife dies, her husband surviving, administration is unnecessary, except as to any separate estate which may have belonged to her. The husband continues to have the same power of disposition over the community property which he possessed during the continuance of marriage. But he shall be required to return an inventory and appraisement of all such property, and to file a bond, signed by one or more sureties, to be approved by and payable to the district clerk of the county, in an amount equal to the value of the whole of the community property, to the effect that he will faithfully administer the same and pay over one-half of the surplus after the payment of the debts with which the whole *287is properly chargeable, to such person or persons as shall be entitled to receive it.”
It is contended by counsel representing the minor children, that the qualification of Charles H. Jordan under this section was invalid, first, because the appraisement was not sworn to; second, because the bond was in the sum of $81,219 only, when the community property was appraised at $117,000, and hence was not for the amount required by statute.
The statement of facts does not show the first objection to have been well taken. The deficit in the bond seems to have been for the estimated amount of the community indebtedness.
It was an irregularity to have taken a bond for an amount less than the appraised value of the property, but, in our opinion, not sufficient, under the circumstances, to have rendered the proceedings void. The giving of the bond by the surviving husband and its approval by the clerk, was in the nature of a judicial proceeding, which should not be held void on a collateral attack. It seems to have been given and accepted in good faith; to have been acted upon and acquiesced in by all parties interested; and no direct proceedings taken to avoid it and have a new or additional one given. The creditors are not complaining, and are not parties directly to the controversy. Although their interests are nominally represented by the executors of Charles H. Jordan, yet these executors themselves contend that the property was the homestead, and hence not subject to the payment of debts. The heirs could only claim an interest in the residuum of the property after the payment of the community indebtedness, and even if the estate had not proved insolvent, the bond w7as intended and was sufficient in amount to secure their interests.
The power of general disposition over the community, given by statute, would contain the lesser power to incumber it; and we do not think that there was error in so much of the judgment below as held the deed of trust valid to the extent to incumber the community property as such.
*288II. Was the deed of trust sufficient under the circumstances to incumber the property, it having been the homestead of Charles H. Jordan at the time of the death of the first wife, Caroline E. Jordan, as against the homestead claims of her riiinor children and of the second wife, Mathilde Kuester ?
The determination of this issue in the court below was made to depend upon a question of fact, the subsequent abandonment or not of the property as a homestead, by the surviving husband, prior to the execution of the deed.
Many of the decisions of this court by which great strictness of testimony has been required to show an abandonment of the homestead, as that of Shepherd v. Cassiday, 20 Tex., 24, were cases where an existing creditor sought, as against the wife, to subject the homestead to execution, or, as in the case of Gouhenant v. Cockrell, 20 Tex., 96, where it was thus sought as against the husband, who had temporarily left it in the legitimate pursuit of his avocation. In these cases, the homestead was claimed to have been abandoned simply by reason of absence, without affirmative act by conveyance or incumbrance. It could not have been contended in these instances that, under the exemption laws, the debts for which the homestead was sought to be made liable had been contracted with reference to it as a means for payment; and in such cases it was very properly required that the testimony should show a clear intention of abandonment. But neither upon principle nor policy should the same degree of strictness be required in a case like the one before the court, where the surviving husband had qualified as such for the purpose of the control and disposition of the property, and then, by an affirmative, express act of his own, incumbered it, and perhaps thus induced credit to have been given him -which would not otherwise have been extended.
As against the minor children, such qualification, under a similar statute, gave the father the right to sell the homestead. (Dawson v. Holt, 44 Tex., 174.)
As against the wife, although in a proper case a previous *289power to sell without her consent might be revoked by the marriage, (Henderson v. Ford, 46 Tex., 627,) yet if, in fact, before the marriage, the property had been abandoned as a homestead, and had been sold or incumbered, the subsequent marriage would not render the transaction invalid.
The deed of trust was, prima facie, a valid incumbrance upon the property, and it devolved upon the defendants to show, by affirmative allegation and proof, that at the time of its execution the property was a subsisting homestead, rather than upon the plaintiffs to allege and prove, by way of confession and avoidance, that it had been then abandoned as such. The court having found that it was thus abandoned, we cannot say, under the evidence, that the judgment on this issue was erroneous. It is not sufficient that the judgment does not clearly appear to be right, but it must clearly appear to be wrong, to authorize us to set it aside. (Briscoe v. Bronaugh, 1 Tex., 340; Ables v. Donley, 8 Tex., 331.)
The issue raised by the motion for new trial was substantially involved in the suit, and there was not such sufficient diligence shown to have obtained the required testimony as would demand that the motion should have been granted.
In our opinion, the parties and issues before the court are not such as to involve the consideration of the respective rights of the creditors of the separate and community estates.
There being no apparent error in the judgment below, thasame is affirmed.
Aeeirmed...