McMullan v. San Antonio Joint Stock Land Bank of San Antonio (78 S.W.2d 669, 1934)

HICKMAN, Chief Justice.

This was an action in trespass to try title to 4,373 acres of land instituted by defendant in error, San Antonio Joint Stock Land Bank of San Antonio, against plaintiffs in error, R. L. MeMullan and wife, Mary L.. Mc-Mullan. • Defendant in error acquired title to the" land under a sale by the trustee in a deed of trust executed by the plaintiffs in error, and it was stipulated upon the trial that plaintiffs in error were the common source of title, and that the sale made under the powers contained in the deed of trust was regular and valid to all the property, save and except 200 acres which plaintiffs in error claim as a homestead. As to this 200-acre tract specifically described in the answer, it was contended that the deed of trust was void, and the only question presented below was the homestead question. That is likewise the only question presented here. To the answer of plaintiffs in error setting up a claim of homestead, the defendant in error, by supplemental petition, pleaded, among other defenses, that the plaintiffs in error were estopped from asserting any homestead claim to this 200-acre tract because (a) it was induced to take up a loan made to tbe MeMullans six years before it made its loan by an affidavit executed by tbe MeMullans to it that their homestead had never been on the property involved in-the suit, and by the further fact that in the deed of trust to secure its loan to them, they designated property owned by them in the town of Snyder as a homestead; (■b) the MeMullans had theretofore executed various instruments and designations, all of which were of record, and all of which showed their homestead to be a certain house and lot owned by them at the time in the town of Snyder; (c) that the loan made by it to the MeMullans was for the purpose of paying off and discharging a prior lien on this land, and it was subrogated to all rights of the prior lienholder; that after this prior lien 'was fixed, the MeMullans sold the property, and in the deed the purchasers assumed the original loan as a part of the consideration; that later the MeMullans repurchased the same, and, by the terms of the deed, accepted title subject to the outstanding indebtedness;