On Motion for Rehearing.
In our original opinion, the following was said: “According to testimony given by appellants on the trial of the case, the property in the town of Graham, which was designated by them as their homestead, had been occupied and claimed by them as a homestead for a number of years but had been disposed of before they moved to Fort Worth.”
That statement was incorrect in this: The testimony of appellants on the trial of the case was to the effect that the property described in the written homestead designation in the town of Graham had never in fact been their homestead; that they had occupied another and different piece of property in Graham for fifteen years but had sold it and had used the proceeds in the purchase of the property covered by the mortgage in this suit. This is made as a correction of the quoted statement in our original opinion.
But the jury was authorized to reject that testimony of appellants in view of the fact that it was flatly contradicted by the sworn statements to the contrary in their application for the loan, and also by oral statements made to Baughman, attorney for the lender, to the same effect; appellants being interested witnesses. Parker v. Schrimsher (Tex.Civ.App.) 172 S.W. 165; Feary v. Railway Company, 162 Mo. 75, 62 S.W. 452; Fagan v. Texas Company (Tex.Civ.App.) 220 S.W. 346; Skiles v. Schropshire (Tex.Com.App.) 77 S.W.(2d) 872; Johnson v. Weed (Tex.Civ.App.) 52 S.W.(2d) 917.
In Texas Land & Loan Company v. Blalock, 76 Tex. 85, 13 S.W. 12, estop-pel was pleaded against a defense of homestead urged to a foreclosure of a mortgage lien upon representations made by the borrowers which induced the lender to grant the loan, to the effect that the property covered by the mortgage had never been used or claimed by them as a homestead, but that they had designated as their homestead another and different tract of land, to wit, section 14 in Burnett county, on which they were then in good faith residing, and which was all the property they claimed as exempt. The effect of the holding was that the lender could not shut his eyes to the fact that the borrowers were at the time actually using the mortgaged property as a place of residence for their family and were not actually residing on and using the other tract as their homestead, notwithstanding representations to the contrary made in order to procure- the loan.
The present suit is distinguishable from that case in this: Although Wruble was charged with knowledge that plaintiffs were occupying the property in question as a place of residence for themselves and family, yet he had the right to rely on the statement made in the application and orally by plaintiffs to Baughman, representing the lender, that such use was temporary ^ only, as found by the jury. Even though it be true, as testified to by the plaintiffs, that at the time they executed the' mortgage they were claiming the property in controversy as their permanent homestead, and had never occupied the designated property in Graham as a homestead, there is nothing in the evidence which would charge Baughman with knowledge of those facts, in spite of plaintiffs’ sworn application and their contemporaneous oral representations to the contrary, as was true in the Blalock Case.
With the foregoing corrections in our original opinion, the motion for rehearing is overruled.