On Appellees’ Motion for Rehearing.
It is true that no mortgage, trust deed, or other lien on the homestead shall ever be valid except for the purchase money therefor or for improvements made thereon, as provided by the statutes and the Constitution, but a homesteader may be estopped to deny the validity of a lien. In First Texas Joint Stock Land Bank v. J. L. Chapman et ux., 48 S.W. (2d) 651, opinion by Chief Justice Conner of this court, it is held that the wife may not be guilty of affirmative fraud in order to estop her from denying the validity of the lien. See Guaranty Bond State Bank v. Kelley, 13 S.W.(2d) 69, by Justice Speer, of the Commission of Appeals, and approved by the Supreme Court. There it is said, quoting from the headnotes: “ ‘Fraud’ which will estop a married woman is not.necessarily intentional fraud, but rather an1 intentional affirmative act of hers, which operates as a legal fraud, whether so intended or not.”
As said in First Texas Joint Stock Land Bank v. J. L. Chapman, supra: "So where, as is the case shown here, a bank in good faith in answer to such inquiry has been assured by the solemn declarations of persons who must be presumed to best know that the land in controversy was free from homestead claim upon the date of the conveyances under which the bank is claiming, such inquiry and assurances must be held to warrant the bank’s acting upon the representations made as being true. To hold otherwise would be to support a legal fraud, even though the person so falsely representing the true state of affairs may be a married woman” — citing Guaranty Bond State Bank v. Kelley, supra.
In the instant case Mr. and Mrs. Patterson both testified and both acknowledged that they executed the deed of trust and the affidavit attached thereto, though Mrs. Patterson testified that she did not read it and Mr. Cowan did not swear her to it. In Carstens v. Landrum (Tex. Com. App.) 17 S.W.(2d) 803, 805, it is said: “We are mindful that it has repeatedly been held that, so long as one place is actually occupied as a home, another place cannot be impressed with the homestead character by an intention to use it as a home in the future. O’Brien v. Woeltz, 94 Tex. 154, 58 S. W. 943, 59 S. W. 535, 86 Am. St. Rep. 829; Archibald v. Jacobs, 69 Tex. 251, 6 S. W. 177; Johnston v. Martin, 81 Tex. 18, 16 S. W. 550; Pierce v. Langston (Tex. Civ. App.) 193 S. W. 745. But in none of these decisions was the occupancy of the first place maintained under such ambiguous circumstances as in the present instance. In the light of the attending circumstances, the occupancy of the farm by Landrum and his little boy was palpably ambiguous in respect of the homestead intention, and it is not thought that the above-cited decisions apply.”
Appellees urge that we are in conflict with the case of Gibraltar Savings & Building Ass’n v. Harper (Tex. Civ. App.) 41 S.W.(2d) 130, 131. It will be noted that in the cited case the decision in no manner involves a conspiracy between the borrower and the agent of the lender. Harper did not own the property which he stated was his homestead in the affidavit furnished the loan company, and the lender'might easily have obtained such knowledge from the deed records; while in the case at bar the appellees did own the property described as their homestead in the affidavit furnished, appellant, and said property was furnished and suitably improved for a homestead. Although the court did not reverse this cause by holding that there- was an ambiguity in the use of said properties, nevertheless the facts in this case seem to be as strong as those in the case of Carstens v. Landrum, 17 S.W.(2d) 803, by the Commission of Appeals.
We conclude that our former holding should be adhered to, and the appellees’ motion for rehearing is overruled.