Opinion by
Watts, J.This, though in form an action of trespass to try title, is in effect a proceeding to vacate and annuli a conveyance from Baines to his wife, of property claimed at that time to be their homestead, on the ground that it was made to hinder, delay and defraud his creditors.
As indicated by the charge the court seems to have treated the case as one coming within the operation of the statute of frauds.
If, as claimed, the property was their homestead at the time of the conveyance, then the true issue would be as to whether the same was intended to and did pass the title as between the parties to it, or whether it was simulated and not intended to pass the title. In the first instance the conveyance would be valid as to existing creditors, for the reason that the property being exempt from forced sale, the conveyance did not take from their reach any property that they could subject to their claims. But in the second instance the title in fact'would still be in the grantor, and when disrobed of its homestead character by abandonment or otherwise it would be subject to seizure and sale for his debts.
Wood vs. Chambers 25th Tex. 254; Cox vs. Shropshire 25th Tex. 123 and 124; Martel vs. Somers 26th Tex. 554.
It seems from the charge that the court considered that the statute of frauds was applicable to the case, and instructed the jury upon that view of the law. In Cox vs. Shropshire it is said : “A conveyance of property which is exempt by law from execution or forced sale, cannot be a fraud sale upon creditors. Such a conveyance is not within the purview of the statute of frauds.”
If as claimed the property was at the time of the conveyance their homestead, and that the conveyance simulated and that is was not intended by the parties that, title should pass, but merely to enable Mrs. Baines to hold it as ostensible owner, after it had lost its homestead character by abandonment, and in that way secure it to Baines as against his creditors, then the conveyance would be inval« id as against creditors, and upon a proper showing would be annulled at their instance.
In not observing the distinction between conveyances of property exempt from forced sale, and conveyances of property subject to seizure and sale, the court erred in the instructions to the jury. And for this error it is believed that the judgment ought to be reversed and the cause remanded.
Report of commissioners of appeals examined, their opinion adopted and the judgment reversed and the cause remanded.
WILLIE, C. J.