On Motion for Rehearing.
Appellees have filed in this case a motion for additional findings of fact and also a motion for rehearing, which motions will be considered in the order named. '
It appears that in the original opinion there was a failure to include in the statement of appellee Harris’ pleading that same contained an allegation to the' effect that, immediately after the notes executed by H. L. Collier in favor of Sam Cordelia were delivered to Harris, H. L. Collier and wife, Estelle M. Collier, executed to L. C. McBride, trustee, their deed of trust covering the property in controversy and securing the payment of the series of notes purchased by Harris. This fact was fully pleaded by said appellees. This deed of trust was duly acknowledged on the 13th day of March, 1922, by Collier and wife, and duly delivered to ap-pellee Harris.
The original opinion contains the statement that “the first deed shown toi the attorney for appellees was not satisfactory to him, and he had another drawn but caused to bear the same date.” This statement in the opinion might be understood as referring to an executed deed, whereas the facts show that it was merely a draft of a deed embracing the provisions as stated in the original opinion. The motion for additional findings in other respects is overruled.
In the motion for rehearing, appellee Harris renews all the contentions heretofore made, and, in addition thereto, urgently Insists that, if this court adheres to its original opinion, it should declare a lien against appellants’ land to secure the payment of the-$900 adjudged against appellant and in favor of appellee. This contention is based upon the fact that it appears from the evidence that the $900 down payment received by appellant on his supposed sale of his land to Collier was a part of the $2,000 paid by said appellee to 'Collier for appellant as the purchase price of the forged notes. The undisputed evidence showed that appellants’ land was their homestead, and it remained their homestead, notwithstanding the forged deed under which said appellee, without any knowledge of the forgery, acquired the notes. No interest in the land passed by the forged deed or the forged notes. It is true that the jury found that appellant, on very different terms to those embraced in the forged deed, had executed a deed to Collier. The record is clear, however, that Collier never accepted this deed, nor acted under it, but, on the contrary, voluntarily chose to reject this deed and claim under the- forged deed. There was no money paid' under the genuine deed to appellant, but, on the contrary, the money to make the payment to appellant was secured under the forged deed and actually paid as a consideration for said deed. While appellants should ■ return the money, and this court has given judgment in favor of appellee against appellant for this money, yet this court cannot decree a lien against land used as the homestead of appellants’ family, against whose ownership the forged deed passed no title, and which land has never been divested of its homestead character.
The motion for rehearing is overruled.