concurring.
I concur in holding that Article 16, section 50 of the Texas Constitution protects the Glover’s from a “forced sale” of their homestead. I disagree, however, that the equitable lien created by the first lawsuit is subject to collateral attack. Instead, I follow the dissent’s rationale that the constitutional homestead right was waived in the first lawsuit by the Glovers’ failure to assert the defense or appeal the judgment.
Therefore, I would hold that while Sharp’s lien is valid, Sharp may not foreclose on it as long as the property remains the Glovers’ homestead. In my view, this case is analogous to the line of cases involving homestead transactions by one spouse, in which Texas courts have adhered strictly to the principle that one-spouse homestead transactions are not void, but merely inoperative while the property remains the non-participating spouse’s homestead. See Villarreal v. Laredo National Bank, 677 S.W.2d 600, 609 (Tex.App.—San Antonio 1984, writ ref’d n.r.e.) and cases cited therein. In Villarreal, a husband and wife executed a note for improvements placing a builder’s and mechanic’s lien on their homestead. The couple later divorced and the trial court awarded ownership of the homestead to the husband but set the property aside to the wife for the use and benefit of the couple’s minor children until the youngest child reached eighteen. While the wife and children occupied the homestead the note became due and the husband, without his former wife’s knowledge or consent, renewed the debt by executing a new real estate lien note on the homestead. When the new note matured, the husband could not pay it and the bank sought to foreclose on the homestead, which was still occupied by the wife and children. The court stated that although the bank had a right to foreclose on the husband’s interest in the property, the bank could not exercise its right and foreclose while the wife occupied the property as her homestead. 677 S.W.2d at 608.
In sum, I would hold that Sharp has a lien which may be executed only upon dissolution of the homestead. This solution more nearly comports with my view of the purpose of the Texas homestead law, gives some relief to the victim of the theft, and incidentally, serves to protect the innocent husband’s quiet enjoyment of his undivided half-interest in the property. Accordingly, I would affirm the judgment of the trial court.