On Rehearing.
The evidence in this case, as stated in the original opinion, warranted the jury in their finding as to the cattle, 16 head of which were sold at $20 per head, making a total of $320, and three head of horses at $280, totaling $600. There can be no question but the horses were the separate property of the wife at the time of this sale. It appears these cattle were sold to the mother of the husband, together with some of his cattle — about 30-odd head in all. He took his mother’s note for $250. It is now asserted there is no evidence of the gift of this $250 by the husband to the wife. The husband had $600 of her money. The wife testifies specifically that her husband promised her, when they were selling out their property preparatory to the move, “If I would let him sell my stock, that he would let me have some land.” She looked at the land for herself, “and I selected this section that I still own;” and they sold the horses for $280, and that his mother paid $250, on the cattle, wihch was placed in the bank, and later the mother finished paying on the cattle, and paid that into the bank; that she intrusted to her husband all the proceeds of the cattle, and left to him the details of investing the money; that he sold the stock with her consent and deposited it, and she selected what she wanted done with the money. The evidence, if believed by the jury, established an agreement between the husband and wife that the proceeds from the cattle and horses should go towards paying for the land for her. The land should be hers, and that she selected it.
[9,10] The fact that the husband mingled her money with his did not defeat her title to the proceeds from the sale. The fact that for part of it he took his mother’s note for $250, which was afterwards paid, did not defeat her right to the proceeds from the sale of the cattle, if they were hers. If the $600 was hers, and her husband held it as hers and for her, and made the first payment on the land out of it, to that extent the land *732was purchased with her separate money. Three horses were hers without question. The increase of the cattle shows a gift to the wife. They were set apart and designated as such by her husband as they increased. This shows it was not a mere agreement to change the law governing community rights, but it was a gift of property in esse. It was not such by virtue of an antecedent agreement alone, but by setting them aside to her separate use and as her property at the time. Speer on Marital Rights, § 116. The antecedent agreement made before the increase, the subsequent agreement, the agreement to place the proceeds in the land, the selection of the land, the intention expressed at the time and afterwards, authorized the jury to find it was then the understanding to make a gift of the community interest in the cattle, as well as the proceeds therefrom. Subsequent creditors, such as appellant and who were such years after this relation had been fixed by the agreement between the husband and wife, will not be permitted to attack the gift on that ground alone. Cavil v. Walker, 7 Tex. Civ. App. 305, 26 S. W. 854; Jordan v. Mareentell, 147 S. W. 357; Cone v. Belcher, 57 Tex. Civ. App. 493, 124 S. W. 149.
As to the horses which wore sold to pay the deferred payment, the same rule above set out will apply. Although there was a deferred note, it was expressly agreed between the husband and wife, when the land' was purchased, that such deferred indebtedness should be paid out of the proceeds from the sale of the wife’s horses. The evidence shows the debt was finally so paid. This vested her with the entire estate in the land.
[11] The fact that the land was school land, and that the purchase money due that fund, will not affect the matter, as we understand the husband could so contract that the interest should be the separate property of the wife, except as to existing creditors at that time. Swearingen v. Reed, 2 Tex. Civ. App. 364, 21 S. W. 383.
The motion will be overruled.