On Rehearing.
PRICE, Chief Justice.Beyond any question, under the findings of the court, aside from the conclusions, on the date of the giving of the deed of trust in question, the property involved herein, to the extent of their interest, was the business and residence homestead of defendants, appellants here. This interest was less than the whole interest in the property, plaintiffs holding, likewise, an undivided interest in the property. The undivided interest of defendants in the property was, of course, not subject to the homestead of plaintiffs. After the conveyance the entire property was the homestead of Person and wife.
Insofar as the validity of the deed of trust is concerned, the question, abstractly stated, may be formulated as follows: May a husband and wife having a homestead in an undivided interest mortgage that interest to acquire the undivided interest in the property not then subject to their homestead right? What the plaintiff acquired was the undivided interest theretofore held by the defendants in the property. In order to obtain this outstanding interest defendants mortgaged the interest acquired and their pre-existing homestead interest. It is our conclusion that the deed of trust was valid as to the interest conveyed by the Levensons and void as to the interest held by defendants before such conveyance.
We have carefully re-examined our conclusions on the question of estoppel, and still adhere to the views before expressed.
It might be added that the lien of plaintiffs on the undivided interest conveyed to them by defendants was completely extinguished by the foreclosure on behalf of the Mortgage Company. The only theory on which a lien can be asserted is its reattachment when the property was reacquired by Mrs. Person. This property was acquired as a homestead, and simultaneously with the acquisition dedicated as such. In our opinion the homestead right prevents the reattachment of the lien.
In the case of Freiberg, Klein & Co. v. Walzem, 85 Tex. 264, 20 S.W. 60, 34 Am. St. Rep. 808, it was held that an abstracted judgment did not create a lien on the homestead subsequently acquired if the homestead was dedicated at the moment of its acquisition. It was likewise so held in Thompson & Sons Lbr. Co. v. Clifton, 132 Tex. 366, 124 S.W.2d 106. By analogy we think these two cases support our holding.
There is absent from the instant case the equities existing in Beitel v. Dobbin, Tex.Civ.App., 44 S.W. 299, cited in concurring opinion, and that line of cases following same. Here, Levenson was equally bound with Person on the obligation foreclosed by the Mortgage Company. The property was sold in order to pay a debt of Levenson and Person.
In compliance with the request of defendants, we find that the notes sued on were part of the purchase price of the undivided interest of Levenson and wife.
The motion for rehearing is in all things overruled.