On Motions for Rehearing.
Both appellant and appellees have filed motions for rehearing. With the exception of ■affirming the portion of the judgment decreeing 80 acres of the 435 acres of land in controversy to be the homestead of the Gibbs, we reversed and remanded the cause generally ; and many of the grounds urged in the .motion for rehearing by appellant are therefore without merit.
• We held the evidence insufficient to sustain the findings and conclusions of the trial court that R. E. P. Gibbs was solvent at the time he conveyed the 435 acres of land in controversy to his wife, and that the conveyance did not come within the inhibition of article ■3997, R. S. 1925. While we stated that, if the ■$285 of Mrs. Gibbs’ money or property were used to pay for the land, such would be a valuable consideration, still we intended to and do with regard to her plea of title under the three years’ statute of limitation base our decision upon the ground that the deed from Gibbs to his wife, based entirely upon the consideration of love and affection, is valid as between the parties, and that such deed, though executed in fraud of creditors, constituted “title or color of title” within the meaning of that term as used in the three years’ statute of limitation. Speer on Marital Rights, pp. 183,184, § 134; Shaw v. Ball (Tex. Com. App.) 23 S.W.(2d) 291; and the cases cited in our original opinion.
Appellees contend in their motion that, since the trial court found that R. E. P. Gibbs intended to execute the deed in repayment of $285, the deed operated as a preferment by Gibbs of his wife as a creditor over other creditors, which he had the right to do. The trial court did not base its judgment upon this theory of title, and appellees have not cross-assigned- error because the trial court refused to so render judgment. The rule is well settled that an error not cross-assigned by an appellee is waived. Prairie Lea Production Co. v. Lincoln Tank Co. (Tex. Civ. App.) 294 S. W. 270.
The undisputed facts also show this contention not tenable, because Mrs. Gibbs’ $285 in money and property was used to purchase a different tract of land, because there was no express or implied agreement that the conveyance was in payment of the $285, and because, in any event, it was not shown that the $285 would be a fair consideration for the land, nor was it shown what portion of the value of the land the $285 would represent. Parker v. Coop, 60 Tex. 116; Blum v. Rogers, 71 Tex. 668, 9 S. W. 595; Oaks v. West (Tex. Civ. App.) 64 S. W. 1033.
The motions are overruled.
Overruled.