On Motion for Rehearing.
Our attention is now, for the first time, called to Marks v. Bell, 10 Tex. Civ. App. 587, 31 S. W. 699 (writ of error denied by the Supreme Court), and Glasscock v. Stringer, 33 S. W. 677, in which it was held that a duly recorded judgment lien against the owner of land which is exempt as a homestead will attach to the property when it ceases to be a homestead, if at such time it is still the property of the judgment debtor. And to those decisions may be added that of Bradley v. Janssen, 93 S. W. 506 (writ of error denied).
It thus appears that by the decisions of this state it seems to be now well settled that a judgment lien does not come within the operation of section 50, article 16, of the Constitution of our state, which provided that “no mortgage, trust deed, or other lien on the homestead shall ever be valid,” with certain stated exceptions not applicable here, and the decisions cited in our opinion on original hearing, to the effect that all such attempted liens are absolutely void from their inception.
We adhere to the conclusion reached upon original hearing, to the effect that the former judgment in the suit of the Texas Bitulithie Company against Hagler, decreeing that the entire property was ITagler’s homestead, estopped that company from claiming in the present suit that there was then an excess over and above the homestead exemption. But notwithstanding that conclusion, under the decisions cited, both judgment liens did attach to all of the property as soon as it was abandoned as Hagler’s homestead. As pointed out in the original opinion, contemporaneously with the execution of the fictitious deed of conveyance to Crockett, Crockett reconveyed the property to Mrs. Cora B. Hagler as her separate estate. Since the deed to Crockett was a nullity, he had no power to convey title to Mrs. Hagler; in other words, he could not convey title by a deed to her if no title was vested in him. Kearby v. Cox (Com. App.) 211 S. W. 932. Such title as Harrison acquired was from J. D. Hagler and wife jointly, and he could not de-raign title through the deed to Mrs. Hagler from Crockett. The title thus acquired by Harrison was owned by J. D. Hagler and wife as community property at the time they abandoned the property as their homestead, and both judgment liens attached to it immediately upon such abandonment and prior to the conveyance by the Haglers to Harrison, which was dated more than two months after such abandonment.
Another contention is now urged, for the first time, that the judgment lien in favor of the Texas Bitulithie Company was superior to the right acquired in the property by Harrison by his purchase of it from Hagler. In reply to that contention, Harrison invokes the equitable rule of subrogation, and insists that by reason of his payment to Mrs. Culber-son of the $15,000 note, which Hagler owed her, and which was superior to the judgment lien, he should be given the same protection to the extent of such payment as would have been accorded to Mrs. Culberson if her note had not been so paid and she were'suing to foreclose that hen.
Harrison testified as follows:
“The consideration for Mr. Hagler conveying the property to me was the assumption of that note [the $15,000 note in favor of Mrs. Culber-son] and my payment of the taxes. I paid the note to Mrs. Culberson; I paid it at different times; I think I made in three different payments of $5,000 each.”
As attorney in fact for Mrs. Sallie H. Cul-berson, Harrison executed a release of the lien upon the property formerly held by Mrs. Culberson to secure the payment of the $15,-000 note. The release was dated February 13, 1918, and was later filed for record. Relative to the execution of 1ftat release, Harrison testified as follows:
“The way I came to execute the release of the vendor’s hen that was executed by me, as shown by the abstract, was for the purpose of clearing the title in order to make a sale to Mr. Lee Bivens at a price of $21,000, which he was to pay for the place. I did not have any other purpose in executing that release.”
There was no proof of any character that at the time he paid the note to Mrs. Culber-son, or at any other timé, there was any agreement on the part of Mrs. Culberson, or any one else, that he should be subrogated to the rights of Mrs. Culberson in said note and the lien securing the same. The testimony of Harrison himself shows that at the time he purchased the property from Hagler *277be bad actual notice of tbe two judgment liens against tbe property. He also bad constructive notice of both liens wbicb were then of record; and, since be assumed tbe payment of tbe note to Mrs. Culberson as a part of tbe consideration for bis purchase of tbe property, and later paid off and discharged tbe note, we are of the opinion that be is not entitled to be subrogated to tbe lien of Mrs. Culberson as against the two judgment liens. McDowell v. Jones Lumber Co., 42 Tex. Civ. App. 260, 93 S. W. 476; Hatton v. Bodan Lumber Co., 57 Tex. Civ. App. 478, 123 S. W. 163; I. & G. N. Ry. Co. v. Concrete Inv. Co., 201 S. W. 718; Lion Bonding & Surety Co. v. First State Bank, 194 S. W. 1012; First State Bank, etc., Co. v. Vardeman, 188 S. W. 695; Pomeroy’s Equity Jurisprudence, vol. 3, § 1213 (3d Ed.); 37 Cyc. 451; 25 R. C. L. § 38, p. 1354.
Tbe case of Silliman v. Gammage, 55 Tex. 365, is tbe leading case cited by appellant Harrison to support bis claim of right of subrogation. But we think that case is distinguishable from tbe authorities cited above. In that case, it appears that a mortgagor, in order to save tbe expense of a foreclosure, conveyed tbe land covered by the mortgage to tbe mortgagee, in good faith and for a fair price, although tbe price was less than tbe mortgage debt, receiving a surrender of tbe note and mortgage. Under such circumstances, it was held that for tbe protection of tbe mortgagee, as against a subsequent lien, his lien should be considered as still subsisting and not extinguished by its release. On principle, we think that decision is analogous to those that bold that tbe owner of tbe property who pays off an incumbrance for the protection of bis title, and wbicb incum-brance he did not assume as a part of tbe consideration for bis purchase, is entitled to .be subrogated to the rights of tbe lien creditor.
Under tbe authorities cited, we conclude that the title acquired by Harrison was subordinate to both of the judgment liens. Accordingly, tbe judgment of tbe trial court will be so reformed as to decree a foreclosure of tbe judgment lien of tbe Texas Bitulitbic Company, as well as that of tbe First National Bank of Lewisville, upon tbe entire property, and tbe proceeds of the sale of the same under tbe foreclosure will be distributed as follows:
First: One-eighth of the proceeds will be applied to tbe payment of tbe judgment in favor of the First National Bank of Lewis-ville, since that creditor has a first lien upon the excess in tbe homestead, which, according to tbe verdict of the jury, was of tbe value of $3,000, or one-eighth of tbe value of tbe entire property.
Second: The balance remaining after satisfaction of the bank’s lien in full out of tbe one-eighth of tbe proceeds of the sale shall be applied first to the payment of tbe judgment of the Texas Bitulitbic Company, and tbe remainder shall be paid over to plaintiff, James Harrison.
Third. If one-eighth of tbe proceeds of tbe sale of tbe property shall be insufficient to pay tbe judgment of tbe bank, then tbe remaining seven-eighths of such proceeds shall be first applied to tbe satisfaction of the judgment of tbe Texas Bitulitbic Company before tbe satisfaction of tbe balance of tbe bank’s judgment, since tbe judgment lien of tbe Texas Bitulithic Company was filed prior to tbe filing of tbe bank’s lien, but the balance of the proceeds of said seven-eighths interest, after tbe satisfaction of tbe judgment of the Texas Bitulitbic Company, shall be applied first to tbe payment of any unpaid balance of tbe judgment of tbe bank remaining after applying one-eigbtb of tbe proceeds to the payment of that judgment; in other words, both said judgments shall be paid in full out of such proceeds to tbe exclusion of Harrison’s rights to any such proceeds, but after satisfaction of both of said judgment liens all of tbe balance of tbe proceeds of the sale of the property shall be paid over to Harrison.
Our opinion on original bearing is corrected in accordance with these conclusions.