On Motion for Rehearing.
The motion of plaintiffs in error for rehearing has convinced this court that its af-firmance of this cause on original consideration was error; that action upon the specific question determined was based alone upon the holding in Stephenson v. Marsalis, II Tex. Civ. App. 162, 33 S. W. 383, and is now determined not to have been properly supported either by that decision or its own facts, for these’ reasons:
(1) As is pointed out in Speer’s “Law of Marital Rights in Texas” (3d Ed.)- § 278,’ the children or heirs in that instance had recelv-*522ed by judgment of tbe probate court not only tbe benefits of tbe sale of tbe homestead involved, but other property as well, hence there was an estoppel by judgment.
(2) Here, on the other hand, there was a determinátively different state of facts; as indicated in our original opinion, there was neither conscious, affirmative, nor any other character of fraud either charged or shown upon Maggie Washington’s part; nor could there have been any estoppel by judgment or deed, because the one had never been rendered and the attempt at the other was admittedly a nullity; so that there was here the mere execution of an absolutely void instrument in the form of a deed, together with receipt and retention of the purchase money. This state of fact, under what seems to be an unbroken line of decisions, does, not constitute an estoppel against a married woman preventing the recovery of her property. 23 Texas Jurisprudence, §§ 206 and 275; Speer’s “Law of Marital Rights in Texas” (3d Ed.) §§ 197, 277 and 278; City of San Antonio v. Grandjean, 91 Tex. 430, 41 S. W. 477, 44 S. W. 476; Silcoek et al. v. Baker et al., 25 Tex. Civ. App. 508, 61 S. W. 939; Merriman v. Blalack, 56 Tex. Civ. App. 594,121 S. W. 552; Green v. Hopper (Tex. Civ. App.) 278 S. W. 286; Daniel v. Mason, 90 Tex. 240, 38 S. W. 161, 59 Am. St. Rep. 815; Calloway v. Book-out (Tex. Civ. App.) 37 S.W.(2d) 243; Durham et al. v. Luce et ux. (Tex. Civ. App.) 140 S. W. 850; Cauble et al. v. Worsham et al., 96 Tex. 86, 70 S. W. 737, 97 Am. St. Rep. 871; Buvens v. Brown, 118 Tex. 551, 18 S.W.(2d) 1057; W. O. Johnson v. E. B. Bryan et al., 62 Tex. 623; Shear Co. v. Wilson (Tex. Com. App.) 294 S. W. 843.
(3) The proof here conclusively, if not undisputedly, shows that an undivided interest in the property described in the purported deed was owned by Maggie Washington, as one of the heirs or devisees of her deceased father, as her separate property and homestead, and that she was at the date of that instrument a married woman living with her husband in possession of it as such, and that the city of Houston had actual knowledge of all these facts before so taking the purported deed to it from her as a feme sole.
Eor this reason also the city was in no position to claim the land by way of estoppel as a result of having accepted the form of a conveyance it knew, or should have known, had no validity. Equitable Mortgage Co-. v. Norton, 71 Tex. 683, 10 8. W. 301, and cited authorities; Robertson v. Yernon (Tex. Civ. App.) 3 S.W.(2d) 573, affirmed in (Tex. Com. App.) 12 S.W.(2d) 991; 21 Corpus Juris, 1131. Also cases cited, supra.
It- is perhaps proper to add that neither the attempt of Ella Peterson, as independent executrix of their father’s estate, to convey Maggie Washington’s interest in the land to the city, nor the contract of Maggie and her husband with Hart purportedly authorizing him to sell her interest, passed any right or title thereto to the city; this for the reasons, first, that by the express provision of the father’s will Ella Peterson had no power of sale. R. S. art 3448. Coy- v. Gaye (Tex. Civ. App.) 84 S. W. 441; and, second, since the property was her homestead, so far as concerned Maggie, her contract to sell it was equally as ineffective as her deed, Speer’s “Marital Rights in Texas” (Edition of 1916) par. 409, and cited authorities.
Pursuant to these conclusions, the motion for rehearing will be granted, the former af-firmance will be set aside, and the judgment of the trial court will be reversed; further, since the record here presented shows the title to the whole property described in the purported deed to have been in the estate'of Henry Goosby, with separate undivided interests therein devised to Ella Peterson and Maggie Washington, which had not been partitioned, judgment will be here rendered that, as affects such interest of Maggie Washington, the city of Houston take nothing— either by reason of that instrument itself or as a result of having paid her her part of the recited consideration therefor — and that, as against it, she recover the title to and possession of such interest in all respects as if the transaction so evidenced had never been had.
Rehearing granted, affirmance set aside, trial court’s judgment reversed, and cause rendered in favor of plaintiffs in error.