On Motion for Rehearing.
On the original hearing we held, under the allegations made by appellee, he caused the deed to be executed to his wife for the purpose of protecting it from the fictitious and stale demands of his creditors; that in making the deed for the separate use of his wife he had the title placed in her, and the deed,having expressed the trust upon which the estate was held by her, could not be contradicted by proving a resulting or implied trust for the use and benefit of the community in the absence of fraud or mistake; that the answer or cross-petition of appellee alleged no facts constituting mistake, but *841the allegation negatived a mistake in fact, in that the allegations showed the deed effected the very purpose designed by appellee, and that he made no specific direction as to the form or terms of the deed further than to state the purpose desired to his attorney; that, having caused the deed so to be made, he should be bound by its terms as much so as if he himself had executed the deed direct fo his wife.
[7] “If he causes a deed for property, paid for with community funds, to be made to the wife for her separate use, and causes the deed to so recite, it will vest the title in the wife as her separate estate.” MeCutchen v. Purinton, 84 Tex. 603, 19 S. W. 710. It is true that case does say that testimony to show the recitals in the deed were not paid out of the separate funds in a proper ease would be admissible. One instance in which it would have been proper to admit such evidence would be when the creditor attacked the deed as being in fraud of creditors ; another might be when it was shown that the clause was inserted through fraud or mistake. Kahn v. Kahn, 94 Tex. 114, 58 S. W. 825; Lott v. Kaiser, 61 Tex. 665. The appellee insists that the court, in the case of Strickland v. Baugh, 169 S. W. 181, reached a different conclusion to the one announced by us. The facts alleged in that case and this we regard as materially different. In that case it was the purpose and direction of the husband, in having the deed executed to be so drawn as to vest title in his wife after his death; but, instead of so drawing the deed, it was made to vest a present title in the wife as her separate estate, and.also it was shown the wife did not know of that deed. The deed there to be drawn was to be testamentary in character, but instead it was drawn so as to vest title in prasenti. This the court evidently found was a mistake in the draftsman and was not drawn according to direction. In this case the deed, according to the allegation, was drawn so as to effect the purpose of appellee without any direction as to its form or terms. This case falls nearer under the rule announced by the Supreme Court in the case of Lott v. Kaiser, supra. We did not decide the case on es-toppel arising upon a purpose to defraud creditors, but on the ground that the deed itself expressed the trust upon which the title was held, and was so executed by the procurement of the husband. We were of the opinion that the pleadings as to mistake were not sufficient on their face. The assignments presenting error in failing to instruct a verdict or to render judgment upon the motion of appellee were not sustained; that is, to the extent of holding that the court should have rendered judgment for the appellee upon the verdict.
[8, 9] We doubt very seriously whether the findings of the jury authorized a .judgment for any one, as we regard them as being in their nature contradictory. That is, they find it was not the intention of ap-pellee to constitute the property the separate estate of the wife, and that he did not know it would be her separate property, but they also find it was his intention to put the title to the property in the wife in order to protect it from the claims of existing creditors and the claims of future creditors. If that was his intention, there could not be a mistake in so wording the deed as to make it effectual. These findings we regard as contradictory, and, in our opinion, would not support a judgment; and again, if he had creditors at that time and he sought to cover up his property, it was fraudulent, and he will not be heard to say that he did ■ not intend to put the title in his wife. It is insisted also that the property was exempt. If it was, there was no fraud on the creditors in deeding it to his wife. While the jury found appellee bought the property with the intention of occupying it as a business and residential homestead, and that it was actually so used, they do not find when it was so used. The appellee testified that it was two months after recording the deed before he moved on the property, and during that time he and his family were living on another place as a business and residential homestead.
[10] It takes more than a mere intention to constitute a homestead ,* that is only a part. As we understand, actual occupancy of the land is not, under all circumstances, indispensable; ‘but there must be something more than mere intention, where there has been no actual occupancy of the land as a homestead, to vest it with that quality. There must be an existing bona fide intention to dedicate the property as a homestead, and this must be evidenced by some unmistakable acts showing an intention to carry out the design. At the time of the conveyance and for two months thereafter appellee and his family occupied other property as a homestead. Can it be said that the mere intention at some future time to make the property so bought a homestead at the time the wife took a deed thereto in her separate right will invest it with that character? Loan Co. v. Blalock, 76 Tex. 85, 13 S. W. 12; Parrish v. Hawes, 95 Tex. 185, 66 S. W. 209. We refer to the question of homestead in the original opinion as not being conclusively shown. While the jury did find it was the intention so to use the property, and that it was subsequently so occupied, they did not find when it was occupied. The question is presented by appellee’s evidence- whether he had in fact abandoned his former home when he caused the deed to be executed to his wife. We were not satisfied that the findings of the jury would authorize the judgment, and hence concluded it to be our duty to reverse the case. At this *842time we desire to state that we did not hold that the action was barred by the statute of limitation.
[11] It is our view, if the land was held in trust by appellee, the suit could be maintained. It was not necessary to set aside the deed or correct the deed before suing for the interest claimed. Insurance Co. v. Brannon, 99 Tex. 391, 89 S. W. 1057, 2 L. R. A. (N. S.) 548, 13 Ann. Cas. 1020; Alfalfa, etc., v. Mudgett, 199 S. W. 337. As we view this case, it should be reversed for a new trial as to the lot in question.
The motion for rehearing will be overruled.