It is unnecessary to notice the numerous assignments of error relating to the claim to the lots twenty and twenty-one, as the separate property of Mrs. Grant. A careful examination of the record shows that the trial judge was sufficiently careful in the admission of testimony and that the burden by the law upon the wife of proving satisfactorily that her separate funds were used in the purchase, was presented in the charge. Some slight errors, resulting, perhaps, from oversight, appear, which will readily be corrected on another trial.
The transaction of November 9, as detailed by the witnesses, in addition to the written instruments then made, was properly admitted in evidence. It was competent to show the attendant circumstances and the more extended agreement of which *451the deed and note were parts. The sufficiency of the parol testimony to establish such further agreement controling the ■deed was for the jury. It was not competent for the court to determine that the parol testimony had established the more extended agreement, and to charge, as legal effect of it, that the transaction was an attempted mortgage on the homestead.
The court charged the jury “that the instrument executed by Grant and wife to Cox & Bell, was a mortgage and void as to any homestead rights the wife may have had in the property so conveyed,” and “that if you believe that at the time of the recording of the judgment in the office of the county clerk of Hill county, W. H. Grant and his wife had been occupying and using the property, or any part of the same * * for the purposes of a homestead, then you will find for defendants such property, if any so used and claimed by them as their homestead.” '
On the legal effect of the deed to Cox & Bell taken in con nection with the subsequent acts of the parties, the plaintiff asked the following charge:
“If you believe from the evidence in this case, that on the ninth ■day of November, 1883, W. H, Grant and Damaris Grant conveyed to Cox & Bell the lots numbers twenty and twenty-one, in controversy in this suit, in consideration of a note executed by Cox & Bell to W. H. Grant for eight hundred dollars, then you are instructed that said conveyance constituted an abandonment by said Grant and wife of any homestead claim by them to one or both of said lots, for the purpose of the suit; and if you further believe that, on the twenty-ninth day of January, 1884, said Cox & Bell conveyed said lots to Damaris Grant in consideration of the cancelation by W. H. Grant of their said note to him, said property would, by said conveyance, presumably become the community property of W. H. and Damaris Grant; and if you further believe that, on the seventh day of April, 1884, the plaintiffs herein fixed a judgment lein on the real estate of W. H. Grant, and if you further believe that, on the said seventh day of April, 1884, said W. H. Grant and Damaris Grant were not living on said lots, or either of them occupying the same as a homestead, then you are instructed that the same would be subject to the execution of any judgment against W. H. Grant.”
These charges, those given and that refused, are alike faulty. The charges as given, assumed as proven, the state of facts *452affecting the deed of Cox & Bell, while that refused entirely ignored the testimony to the explanation of the purpose of the deed. It was the duty of the court to submit to the jury the testimony to the alleged arrangement by Grant with Cox & Bell, by which, if proven, the deed in legal effect became a mortgage, with instruction as to the effect such facts, if found, would have upon the status of the property as the homestead of Grant and wife; and on the other hand, if the jury should ignore the other or further facts beyond the written instruments executed, then the legal effect of the written instruments upon the rights of the parties should have been given.
It does not appear in the record that lot sixty-two ever was used as part of the homestead. Upon such state of facts the charge upon the homestead rights should have been limited to lots twenty and twenty-one. It seems that these lots were fenced by a common inclosure, and were used together as a residence—the dwelling on lot twenty-one, the stables, etc., on lot twenty. From this it would appear that the temporary occupation of the house erected on lot twenty could in no way affect the rights of the parties if homestead rights had attached , to any part of the inclosure. (68 Texas, 455, Newton v. Calhoun.
The transaction by which Mrs. Grant obtained the deeds to lots sixty-one and sixty-two does not necessarily make , lot number sixty-two community property. The wife had funds, . the husband had none. She wished to buy the lots and contracted for them partly on credit. For convenience the cash payment was applied to one, and the other was bought wholly on credit. It is shown that the note of the husband was not relied upon, neither she nor the vendor expecting payment to be made by him. If such was found to have been the contract, in absence of any fraud or collusion, there is nothing in it contrary to any rule of law or of public policy. If, in fact, the purchase was by her the deed took effect in conveying the lots to her separate estate.
A question is raised in the record which may affect the rights of the parties. It seems that “the index” of the records of judgment liens was objected to because “the name of each plaintiff and of each defendant in the judgment,” etc., did not appear on the index, as required in fixing judgment liens. (Rev. Stats., arts. 3158, 3159.) This is not necessary to be passed upon in this case, but it is remarked that where a rule *453is given by act of the Legislature, courts are not at liberty to disregard it, or to attempt to avoid its effects, when applied to •a state of facts contemplated by it.
Opinion delivered April 10, 1888.For the error in the charge of the court, as above stated, the judgment below is reversed and the cause remanded.
Reversed and remanded.