On Motion for Rehearing.
[9, 10] The first ground of the motion for a rehearing is that this court has no power to reverse the judgment on a question of fact determined by the trial court. That is exactly what the Court of Civil Appeals, in certain cases, is required to do by article 1626, Vernon’s Sayles’ Civil Statutes, unless it is necessary that some matter of fact be ascertained, in which case it would be our duty to remand. Durrell v. Farwell, 88 Tex. 98, 30 S. W. 539, 31 S. W. 185; Henne & Meyer v. Moultrie, 97 Tex. 216, 77 S. W. 607; Cook v. Spencer, 91 S. W. 813; Wininger v. Railway, 105 Tex. 56, 146 S. W. 1150; Irving v. Freeman, 106 Tex. 38, 155 S. W. 931; McClary v. Trezevant & Cochran, 112 S. W. 954. The facts seem fully developed in this case, and are uncontradicted. There is no necessity to remand to, ascertain any additional fact. It is not claimed that it should be remanded for that purpose. We are giving effect to the findings of the trial court, and do not undertake to make any new findings of fact, for we cannot do that: Eidson v. Reeder, 101 Tex. 202, 105 S. W. 1113. We are simply applying the well-established rule. *186After discarding all adverse evidence and inferences, the evidence was not sufficient to support the judgment in favor of defendants in error.
[11 ] The findings of the court establish the fact that the entire transaction was a fraud upon the rights of plaintiff in error. The Bartlett homestead was taken from her as well’ as all her other community interest in other lands and property. By virtue of that decree of which she had no knowledge a judgment was entered whereby the title to all other land was reduced to a life estate and a lien created by the decree to secure the debt established thereon upon the 400-acre homestead tract. In view of their actions no court of equity will aid them in their subro-gation to the liens sought to be foreclosed on the homestead now occupied by her.” When that decree was entered, Bell knew and had declared the 400-acre tract was to be the homestead.
It may be that plaintiff in error was entitled to have the Bartlett homestead set aside to her in the first instance and have her community rights settled, but that was not done, and the question is not before us.
At any rate defendants in error have not presented such a case in equity for relief or subrogation that will find favor. See, under the subject, “He who comes into equity must come with clean hands,” 4 A. L. R. 44.
The community estates by both marriages are as follows:
The community property of the first marriage in which defendants in error had interest, and to be accounted for, was:
Hamblin (arm (210 acres of the 400-acre
tract) less improvements and incumbrance 53,000 00
Homestead in town, less improvements....... 800 00
10 shares bank stock. 1,200 00
$5,000 00
The community property of the second marriage, disposed of in the said partition, was: 187 acres and 10 acres out of the 400-acre
tract, subject to $2,750 debt.$ 7,100 00
Improvements on 210-acre tract. 4,200 00
Improvements on town homestead. 2,000 00
$13,300 00
The evidence is conclusive that the last-named items of purchases and improvements were made after th'e second marriage, and the proof does not show that they were paid for either from the separate funds of J. D. Bell or from community funds of the first marriage.
The court finds as a fact:
That it cannot be said with confidence which character of funds were used. “According to a statement made by J. D. Bell in 1914, the entire interest of the defendants in error in the estate of their deceased mother was only $2,-500. He, however, in the decree, gave them $6,000 in notes, the Bartlett property, of the value of $400, and the remainder estate in the 400-aere tract. At the time of the judg- ' ment the 210 acres were worth $85 to $90 per acre, and the remainder of the 400-acre tract was worth from $40 to $50 per acre. These tracts were, however, incumbered to the extent of $9,750. Mr. Bell testified: T feel like I gave them a little the better of it in the settlement, but then you might say that was free on my part.’ ”
Anticipating that plaintiff in error’s husband, in accordance with his repeated declarations from beginning to end would establish and intended to and did establish the homestead on the 400-acre tract where they are now living, she testified:
“Mr. Bell built a garage, and over that he built a house for me to live in, and then we put up barns, hog fencing, and a silo on it. I don’t know what all we haven’t done with the intention of making it a home. With declarations of Mr. Bell with reference to making further improvements or going to build a house on the property, it has always been our plan, when we were financially able, to build a house upon this tract of land. I cannot tell the date when those improvements were made on the tract of land; I have not kept track of the improvements in any way. I am of the opinion that most of the improvements were made before the judgment was rendered in the case here in July, 1917; that is my best judgment about it. The garage was built before the judgment was rendered, and over that garage was supposed to be my temporary home until he had the means to fix a better abode. There was a garage built on the Davilla place while I was living in Bartlett, and there was provisions made over the garage for a temporary home; that provision was one room, and I lived in that room just after I moved down to the Davilla farm; I lived in it from May to September 1918. I don’t remember when that room was put up. I objected to it as a home, but finally was reduced to move into it, as I had nowhere else to go.”
The court found, and the facts so established it, that when Bell took his wife from the Bartlett home he intended then (as the proof showed) and ever afterward to move upon the 400-acre tract, and “built a garage with one room over the garage, which was afterwards occupied by J. D. Bell and Pearl Bell for a few days or weeks while the house in which they now live was being completed.”
Prom the/inception of that decree on down to the end not only a fraud, but a great injustice, has been done to the community and homestead rights of plaintiff in error; and the defendants in error do not come into court with such a case as appeals to the equitable powers of the court. The pleadings of neither party are perhaps so framed as to permit the granting of other relief than given herein.
Apparently defendants in error have received from plaintiffs in error’s community estate, through their father’s and her husband’s acts, more than sufficient to take care of the liens.
The motion for rehearing is overruled.