On Rehearing.
Appellant’s motion for rehearing exhibits such evidences of careful research and learning as justly to merit further discussion. In the original opinion, we expressed a doubt whether the issue of estoppel was raised by the evidence. Estoppel was a defense of a nature required to be pleaded. The question then is, Did the uncontroverted evidence show conclusively as a matter of law the existence of each, and every necessary fact alleged to constitute estoppel? A careful reading of appellant’s first supplemental petition, wherein are to be found the facts relied upon to constitute an estoppel, shows that it. was not alleged that the lots across the street from the property in controversy were used, or ever had been used, as a business homestead, nor that same were adapted to, or necessary as, a place of business. On the contrary, appellant expressly averred (not in the alternative nor by separate count) that Oarmony was not engaged in the ice cream and poultry business, as he claimed, which was the only business in connection with which, according to the undisputed evidence, said lots were used. The plea of estoppel expressly alleged: “That there was located on Lot 6, Blk. 2 a two-story store or brick business house situated on the west side of Patrick Street and within the business district of the city of Dublin, which building was better located and a more valuable site for business purposes and adapted by both location and construction to the uses of a business homestead than was the property in controversy in this case.” Then, after alleging that since 1622 Carmony’s business had been the ice manufacturing business, the cotton compress business, and dealing in futures and brokerage business, further alleged: ■“That no part of said business and occupations named was carried on by defendant on the premises in controversy, but that sam« was carried on in part in the building located on Lot 5, Blk. 2, and at other places in the city of Dublin, separate and apart from Lot 14, Blk. 6, involved in this cause.” It is thus clearly to be seen that, in considering whether the undisputed evidence established each necessary fact relied upon to constitute ar estoppel, the facts regarding the conditior and use of said lots across the street from the property in controversy are wholly immaterial, as they are entirely without the scope of the pleadings. The conclusion of the tria court was that Oarmony’s business, in connection with which his business homesteac rights attached, was neither of those alleged in the plea of estoppel, but another and different business, and, if there was an issue oi fact upon this point it was determined against the appellant. It is necessarily true 'that those lots across the street could nol have been used as the place of business ir 'any of the businesses alleged by the appellee
It is therefore our opinion that the plead ings did not tender any issue as to which th< condition and use of the lots across the stree were material.
The validity of our conclusion to the effee that the evidence raised an issue of fact re garding appellant’s reliance upon the state ment in the deed of trust is challenged oi the ground that some of the evidence eon sisted of the conclusion or opinion of th< witness, and should therefore be excluded from consideration under authority of Henry v. Phillips, 106 Tex. 466, 151 S. W. 633. Thi: point is urged particularly to the testimo-nj of Carmony quoted in the original opinion a: follows: “From my remarks that were mad( there he, of course, knew that piece of prop erty was homestead piece of property and al I had in the world in Dublin or anywheri else.” It may be conceded that this testimo ny is the statement of a conclusion not to b considered under said authority. That con cession, however, does not affect the validit; of our holding. There was evidence iron which the jury would have been warrante< in reaching the same conclusion by way of in ference from facts in the testimony. Ther was evidence that the property was valuable! There was evidence of its use as a place o business. There was no evidence of any fac from which it could be reasonably inferrei that the property was worthless as security for any other reason than it was claimed t be homestead.
Upon the whole, therefore, it is our conclu sion that the motion for rehearing should b overruled, which is accordingly so orderec