(concurring).
While I agree that this case should be reversed and rendered insofar as same establishes and forecloses a lien, I do not base my decision upon the same ground as Justice WALTHALL.
I do not agree with the holding that the deed of trust of March 10, 1931, was entirely void. Plaintiff pleaded: “The consideration in part for said notes was the conveyance by Wolf Levenson of all his right, title and interest in and to the property.” However, under the facts as developed, it seems that the said notes were part of the consideration given for the property, and the conveyance, if made, was partly made for these notes. Conceded that the property was the homestead of defendants at the time of the giving’of the deed of trust, I think on the interest conveyed by Levenson to Person it constituted a lien. If the property was a homestead, in my opinion, it did not create *423a lien on the undivided interest held by the Persons before the conveyance.
Under the facts found by the trial court, this undivided interest, prior to the execution of the deed of trust, was the homestead of defendants.' The finding of use and occupancy as a homestead constituted it such, although it was found by the trial court as a conclusion that it was not a homestead.
The building, although constituting thirty-six apartments, was a unitary structure. The occupation of any part of same as a homestead extended the exemption to the land on which it -was situated and the structure. Ford v. Forsgard, 87 Tex. 185, 27 S.W. 57, 25 L.R.A. 155; Postal Savings & Loan Ass’n v. Powell, Tex.Civ.App., 47 S.W.2d 343, writ refused, and authorities cited; Thomas v. Tyler, Tex.Com.App., 6 S.W.2d 350.
Under the facts found the.property was likewise the business homestead of defendant. Shamburger Lbr. Co. v. Delavan, Tex.Civ.App., 106 S.W.2d 351, writ refused, and authorities cited.
It is elementary that a homestead exemption attaches to an undivided interest in property.
This homestead right of defendants continued until the foreclosure by the City Mortgage Company. The foreclosure of its lien was to cut off and destroy this homestead right. During the interim between the foreclosure sale and the deed from the City Mortgage Company to Mrs. Person, the Persons had no title or estate in and to the premises to which the homestead exemption could attach. But on the execution and delivery of that deed the property eo instante became the homestead of defendants. Thjs is true, even though defendants are estopped by the mortgage here sought to be foreclosed. Under the issues as made here, unless the notes represent purchase money, or the defendants were each estopped to plead the defense of homestead, or the lien existed before the dedication of a homestead, these notes are not enforceable as a lien on the property. Art. 16, Sec. 50, Constitution, Vernon’s Ann. St.
In my opinion, Sec. 50 of Article 16, making a homestead liable for purchase money, applies to a debt by which a then created homestead is acquired. It does not apply to any other debt. A newly dedicated homestead is not liable for a debt against the former homestead, even though the new homestead is on the identical property as the old. Of.course, the homestead is liable for a lien which exists prior to the dedication of such homestead. Further, the husband and wife, or either, may estop themselves from claiming a homestead.
When the City Mortgage Company purchased the property, all title of the Persons and the rights of the Levensons therein vested in it. When it conveyed to Mrs. Person that title vested in her, unless there is an estoppel to assert that title against Mrs. Levenson.
In my opinion this property is community property. Community obligations were given for the entire consideration. The evidence fails to show that at the time the title passed it was the intention that such obligations be paid from the separate estate of Mrs. Person. In fact, the evidence seems to negative any such reasonable expectation.
Under a liberal construction of plaintiffs’ pleading it may be alleged the notes represent purchase money. The literal allegation is: “The consideration, in part, for said notes was the conveyance by Wolf Levenson,” etc. Further, it was alleged that the foreclosure by the City Mortgage Company was a collusive proceeding between the Persons and the Mortgage Company — the intent of the foreclosure was to cut off and extinguish the lien of plaintiffs, and then to have the property conveyed by the Mortgage Company to the Persons. Defendants pleaded the homestead exemption. Plaintiffs did not plead by supplemental petition any reply to this defense. If estoppel is pleaded against defendants it must be found in the allegations of plaintiffs’ petition.
The findings are against plaintiffs on the issue of a collusive foreclosure. Estop-pel, then, must be predicated alone on the deed of trust. No covenants of warranty contained in that instrument are invoked by plaintiffs’ pleading, although it is urged by counter proposition here that the judgment is sustainable on the theory of estop-pel by covenants in the deed of trust. A copy of that instrument is neither set forth in nor attached to plaintiffs’ petition as an exhibit. It is shown that Sophie Person joined with her husband in executing the deed of trust. No duty of defendants is averred in plaintiffs’ petition as to the obligations which were the foundation of the *424liens foreclosed by the City Mortgage Company against the Persons and Levensons; it is not averred that defendants were liable on them or had ever assumed the liability of such obligations.
Under the findings of the trial court these obligations were jointly created by plaintiffs and defendants. , Defendants in their plea of estoppel plead the joint liability on the obligations secured by the lien foreclosed. The contract of March 10th, executed contemporaneously, we presume, with the deed of trust, provided that on a compliance by Person with the conditions thereof Levenson would convey his right, title and interest subject to such liens. If conveyance there was from Lev-enson to Person, it is fair to assume that it was in accordance with this contract, under which such obligations were not assumed.
Further, plaintiffs not having pleaded the covenants of warranty in the deed, cannot, in my opinion, rely on same in this proceeding as an estoppel. Mrs. Person, a married woman, was not .bound by such covenant. Wadkins v. Watson, 86 Tex. 194, 24 S.W. 385, 22 L.R.A. 779. This may be unimportant, as the husband has the privilege of selecting the homestead.
It appears from the defendants’ answer herein that the liens foreclosed were the joint obligations of plaintiffs and defendants here. Let us, then, .consider it from that point of view.
Judge Neill, in the case of Beitel v. Dobbin, Tex.Civ.App., 44 S.W. 299, 301, enunciated this proposition: “It is elementary that a purchaser of property, who agrees, as a part of the consideration, to pay off two mortgages upon it, cannot suffer a sale to take place under the prior one, and, without discharging the junior mortgage, claim title against it.”
The Supreme Court gave sanction to the proposition by refusing a writ of error. The principle has received recognition in the following cases: Kerr v. Henderson, Tex.Civ.App., 1 S.W.2d 1100; Kerr v. Henderson, Tex.Civ.App., 13 S.W.2d 227; Kerr v. Erickson, Tex.Com.App., 24 S.W.2d 21; Milford v. Culpepper, Tex.Civ.App., 40 S.W.2d 163; Buckner v. Buckner, Tex.Civ.App., 51 S.W.2d 769; Levy v. Winfree, Tex.Civ.App., 99 S.W.2d 1043.
To attempt to state the proposition in another way: A mortgagor, by his own default, cannot build up against his mortgagee a title founded on a superior lien which the mortgagor has the undivided duty to discharge. But such is not the case here. At all times the liability of Person and Levenson was equal as to the obligations. They wqre co-makers of the obligations and the property was jointly hypothecated to secure the obligations. The property was sold to satisfy the obligation of Levenson just as much as the obligation of Person. The liens were jointly created by plaintiffs and defendants. With reference to personal liability on the City Mortgage Company obligations there is no evidence that the situation was changed at the -time of the execution of the deed of trust in question. The fact the contract was that the property was to be conveyed subj ect to these liens negatives any assumption by Person of the liability of Levenson thereon.
Now the case of Kerr v. Erickson, supra, has many things in common with the instant case. There, as here, there was no collusion in the conduct of the sale; there, as here, a party other than the mortgagor bought the property in and conveyed same to the mortgagor; there, as here, if we are correct in our construction of the pleadings, no question of warranty of title was. involved. However, I think the distinguishing feature is that here the property was sold to satisfy a debt of one in privity with the one pleading estoppel. This was not true in Kerr v. Erickson. Likewise, in that case there was no question of homestead involved.
As has been before stated, the moment this property was conveyed to Mrs. Person, it became a homestead. Freiberg, Klein & Co. v. Walzem, 85 Tex. 264, 20 S.W. 60, 34 Am.St.Rep. 808. In this case it was held that, although a judgment was duly abstracted, same did not attach to a subsequently acquired homestead, the homestead being dedicated simultaneously with the conveyance of the property to the husband. This case has been followed and frequently cited since its rendition.
It is conceded here that the City Mortgage Company has a lien in the sum of $6,700 superior to that of the lien here asserted by plaintiffs. It is superior, because same represents purchase money of the new homestead. The fact that Person owed money and may have been insolvent did not prevent him from acquiring a new home. Although Person was vested with the right of selecting this home, his *425wife had the right to acquire a homestead in connection with her husband. In my opinion, this mortgage does not estop her. The covenants and warranties do not bind her. If, in truth and in fact, the notes represent purchase money, her joining in the mortgage was not necessary to its validity.
The courts have at all times given our homestead laws a liberal construction to protect the right conferred by the Constitution.