Stayton, Associate Justice.—
At the time the agreement of March. 15, 1877, was made between Astugueville and Louge, the former had only the fee simple title to one-third of the lot, which he had acquired through purchase from one of the children of Brassier, who w.th the other children, prior to the sale of his interest to Astugueville, had incumbered it with a trust deed to secure the debt due to Hurt.
Astugueville also held a life estate in an undivided one-sixth of the lot, through inheritance from his wife, and it is claimed that he had a homestead interest in one-half of the lot which he was entitled to enjoy during his life.
It is claimed that it was not the intention of Astugueville to part with such interest as he had in the property by the agreement of March 15, 1877, and the subsequent acts contemplated by that instrument, and that the whole transaction between the parties, in connection with the purchase by Louge, under the deed of trust sale, was only intended by the parties as a mortgage, and did not divest such title or right as Astugueville had prior to the date of the agreement between him and Louge.
The intentions of parties when their contracts are reduced to writing must be gathered from the writing itself, considered in the light of the facts surrounding the contracting parties at the time an agreement is made.
It is not claimed in this case that the parties, through accident, mistake or fraud, failed to express in the written instrument their real intentions.
The language of the instrument imports that, in consideration of certain things to be done by Louge, which he obligated himself to perform, the appellant, by that instrument, conveyed to him whatever interest or right he then had in the lot.
It declares that “ he, the said Astugueville, should the terms of this agreement be truly carried out by the said Louge, hereby does release and convey unto the said Louge all right or estate of whatsoever nature he, the said Astugueville, may now have in said lot Ho. 1, block No. 324, together with the improvements thereon, it being well understood that should the said Louge fail to comply with the terms of this agreement, then this conveyance of his (said Astugueville’s) rights to said property shall be null and void.”
[238]*238This is the language of a grant in presenti, based on acts to be performed by Louge at a future time, and the grantor, having no wife, had full power to make it, and thereby convey whatever interest he then had.
As if to emphasize the fact that the title to Astugueville’s interest in the property was to pass with the execution of the instrument, it further declares “ that in consideration that on this day the said Astugueville has renounced and transferred unto him, said Louge, all his rights and estates in and to the, property hereinbefore described,” etc.
It is not pretended that Louge did not do and perform to the letter the acts and things which were the consideration of the conveyance.
In reference to property not homestead, no question could arise as to the effect and validity of the agreement between Astugueville and Louge, and it must be held that this instrument and the subsequent purchase by Louge under the Hurt trust deed, and compliance with the terms of the agreement, vested in Astugueville a title, in so far as the liability of the property to sale in satisfaction of the notes given by Astugueville to Louge is concurred, bereft of all homestead claim whatever, unless the agreement of March 15, 1877, was in violation of sec. 50, art. 16, of the constitution.
The constitution declares that “no mortgage, trust deed or other lien on the homestead shall ever be valid, except for the purchase money thereof or improvements made thereon, as hereinbefore provided, whether such mortgage, or trust deed, or other lien shall have been created by the husband alone or together with his wife.”
That no mortgage or other lien was intended to be given by the instrument is certainly true; for no such thing can exist in the absence of a debt to be secured by the lien.
The existence of a debt to be secured is the very foundation on which a mortgage or other lien depends; when the one is not found the other cannot exist.
It is this test which is often resorted to for the purpose of determining whether an instrument evidences a mortgage or conditional sale. It is said that the latter “ are to be taken strictly as independent dealings between strangers.” A mortgage “ is a security for a debt, while a conditional sale is a purchase for a price paid, or to be paid, to become absolute on a particular event, or a purchase accompanied by an agreement to resell upon particular terms.” Sewall v. Henry, 9 Ala., 33.
It is therefore unnecessary to consider, in this case, whether a [239]*239man having no wife, but having a family of which he is the head, can legally create a mortgage or other lien on property used as homestead, for purposes other than such as those for which liens on such property are authorized by the constitution.
Taking all of section 50, art. 16, of the constitution into consideration, it would seem, however, that there was no restriction intended to be placed on the owner of property used as homestead, in reference to his power to sell or incumber it with liens, unless such person have a wife.,
It imposes a restriction on the power of the husband to sell the homestead only when he is a married man, and in such case a sale cannot be made without the wife’s consent given in the manner prescribed by law.
If, however, the head of a family be an unmarried man, he may sell a homestead which he owns just as he may sell any other property ; and it is ordinarily true that the owner who has an unrestricted power to sell may mortgage. Jordan v. Imthurn, 51 Tex., 287; Tadlock v. Eccles, 20 Tex., 782.
Under former constitutions, it was held that restrictions placed on the power of a husband to sell or otherwise dispose of homestead property were for the benefit and protection of the wife, and that a contract made by the husband alone might be enforced against the husband after the death of the wife. Brewer v. Wall, 23 Tex., 587; Allison v. Shilling, 27 Tex., 454; Wright v. Hays, 34 Tex., 261.
It then only becomes necessary to inquire whether the agreement in question was in violation of the last, clause of the section of the constitution referred to. That clause provides “ that all pretended sales of the homestead involving any condition of defeasance shall be void.”
Under this clause of the constitution, it is not every sale of the homestead involving a condition of defeasance which it declares shall be void; but it declares that all pretended sales involving such conditions shall be void.
The word “pretended” is evidently used in its ordinary sense, and means “ feigned,” “ not real.” Was such the character of the sale made by the instrument in question ? Certainly not, if considered in the legal effect of the language used, or in the light of the object sought to be accomplished by Astugueville. He had but a small interest in the property, even if, under the law in force at the time of the death of his wife, he would have been entitled to a . homestead use of her interest during his life, which in this case need [240]*240not be determined.
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Stayton, Associate Justice.—
At the time the agreement of March. 15, 1877, was made between Astugueville and Louge, the former had only the fee simple title to one-third of the lot, which he had acquired through purchase from one of the children of Brassier, who w.th the other children, prior to the sale of his interest to Astugueville, had incumbered it with a trust deed to secure the debt due to Hurt.
Astugueville also held a life estate in an undivided one-sixth of the lot, through inheritance from his wife, and it is claimed that he had a homestead interest in one-half of the lot which he was entitled to enjoy during his life.
It is claimed that it was not the intention of Astugueville to part with such interest as he had in the property by the agreement of March 15, 1877, and the subsequent acts contemplated by that instrument, and that the whole transaction between the parties, in connection with the purchase by Louge, under the deed of trust sale, was only intended by the parties as a mortgage, and did not divest such title or right as Astugueville had prior to the date of the agreement between him and Louge.
The intentions of parties when their contracts are reduced to writing must be gathered from the writing itself, considered in the light of the facts surrounding the contracting parties at the time an agreement is made.
It is not claimed in this case that the parties, through accident, mistake or fraud, failed to express in the written instrument their real intentions.
The language of the instrument imports that, in consideration of certain things to be done by Louge, which he obligated himself to perform, the appellant, by that instrument, conveyed to him whatever interest or right he then had in the lot.
It declares that “ he, the said Astugueville, should the terms of this agreement be truly carried out by the said Louge, hereby does release and convey unto the said Louge all right or estate of whatsoever nature he, the said Astugueville, may now have in said lot Ho. 1, block No. 324, together with the improvements thereon, it being well understood that should the said Louge fail to comply with the terms of this agreement, then this conveyance of his (said Astugueville’s) rights to said property shall be null and void.”
[238]*238This is the language of a grant in presenti, based on acts to be performed by Louge at a future time, and the grantor, having no wife, had full power to make it, and thereby convey whatever interest he then had.
As if to emphasize the fact that the title to Astugueville’s interest in the property was to pass with the execution of the instrument, it further declares “ that in consideration that on this day the said Astugueville has renounced and transferred unto him, said Louge, all his rights and estates in and to the, property hereinbefore described,” etc.
It is not pretended that Louge did not do and perform to the letter the acts and things which were the consideration of the conveyance.
In reference to property not homestead, no question could arise as to the effect and validity of the agreement between Astugueville and Louge, and it must be held that this instrument and the subsequent purchase by Louge under the Hurt trust deed, and compliance with the terms of the agreement, vested in Astugueville a title, in so far as the liability of the property to sale in satisfaction of the notes given by Astugueville to Louge is concurred, bereft of all homestead claim whatever, unless the agreement of March 15, 1877, was in violation of sec. 50, art. 16, of the constitution.
The constitution declares that “no mortgage, trust deed or other lien on the homestead shall ever be valid, except for the purchase money thereof or improvements made thereon, as hereinbefore provided, whether such mortgage, or trust deed, or other lien shall have been created by the husband alone or together with his wife.”
That no mortgage or other lien was intended to be given by the instrument is certainly true; for no such thing can exist in the absence of a debt to be secured by the lien.
The existence of a debt to be secured is the very foundation on which a mortgage or other lien depends; when the one is not found the other cannot exist.
It is this test which is often resorted to for the purpose of determining whether an instrument evidences a mortgage or conditional sale. It is said that the latter “ are to be taken strictly as independent dealings between strangers.” A mortgage “ is a security for a debt, while a conditional sale is a purchase for a price paid, or to be paid, to become absolute on a particular event, or a purchase accompanied by an agreement to resell upon particular terms.” Sewall v. Henry, 9 Ala., 33.
It is therefore unnecessary to consider, in this case, whether a [239]*239man having no wife, but having a family of which he is the head, can legally create a mortgage or other lien on property used as homestead, for purposes other than such as those for which liens on such property are authorized by the constitution.
Taking all of section 50, art. 16, of the constitution into consideration, it would seem, however, that there was no restriction intended to be placed on the owner of property used as homestead, in reference to his power to sell or incumber it with liens, unless such person have a wife.,
It imposes a restriction on the power of the husband to sell the homestead only when he is a married man, and in such case a sale cannot be made without the wife’s consent given in the manner prescribed by law.
If, however, the head of a family be an unmarried man, he may sell a homestead which he owns just as he may sell any other property ; and it is ordinarily true that the owner who has an unrestricted power to sell may mortgage. Jordan v. Imthurn, 51 Tex., 287; Tadlock v. Eccles, 20 Tex., 782.
Under former constitutions, it was held that restrictions placed on the power of a husband to sell or otherwise dispose of homestead property were for the benefit and protection of the wife, and that a contract made by the husband alone might be enforced against the husband after the death of the wife. Brewer v. Wall, 23 Tex., 587; Allison v. Shilling, 27 Tex., 454; Wright v. Hays, 34 Tex., 261.
It then only becomes necessary to inquire whether the agreement in question was in violation of the last, clause of the section of the constitution referred to. That clause provides “ that all pretended sales of the homestead involving any condition of defeasance shall be void.”
Under this clause of the constitution, it is not every sale of the homestead involving a condition of defeasance which it declares shall be void; but it declares that all pretended sales involving such conditions shall be void.
The word “pretended” is evidently used in its ordinary sense, and means “ feigned,” “ not real.” Was such the character of the sale made by the instrument in question ? Certainly not, if considered in the legal effect of the language used, or in the light of the object sought to be accomplished by Astugueville. He had but a small interest in the property, even if, under the law in force at the time of the death of his wife, he would have been entitled to a . homestead use of her interest during his life, which in this case need [240]*240not be determined. But he desired to become the owner of the entire lot; such he could become only by the purchase of that which belonged to others and in their hands was charged with a debt which could be enforced against it.
Louge was willing to buy the entire property and sell it to him, if he could be secure in so doing. To acquire such title it became necessary to have whatever title or claim the appellant had, as well as the interest of the children of Brassier, which would pass by the sale under the trust deed which they had executed.
In this state of affairs appellant conveyed to Louge all the interest he then had for a real and not a feigned purpose; this conveyance was made for valuable consideration, and that the purpose in making it looked to the re-acquirement of that interest, as well as all other interests in the property, by a subsequent purchase from Louge, after he should acquire title to the whole, did not make it the Less real; did not render it a mere pretense.
If the constitution prohibited every sale of a homestead, made with a condition or agreement whereby the seller might re-acquire title, there would be an end of the question; but as before said, such is not the prohibition contained in the constitution. Such a sale, if real, in no way feigned or pretended, would not be in conflict with any provision of the constitution.
A sale, if real, with an agreement to reconvey on named terms, involves validity in the sale and resale; carries with it the idea that the parties intend the title, and not a shadow, to pass and repass, in accordance with the agreement; and that there shall be nullity in no part of the transaction; that the conveyance shall become a living, vital source of title, through which title by the resale may pass.
The title conveyed was evidently intended by the parties to be a vested real interest in Louge, never to become null by reason of the performance of any condition by Astugueville, but on the contrary to exist and become the source of future title, which, through Louge, Astugueville hoped to and did acquire completely, in so far as the same depended on any act of Louge.
A defeasance carries with it the idea of nullity; it is said to be a condition annexed to a deed, which, being performed, the deed is rendered null.
The parties to the agreement evidently never contemplated a defeasance; to prevent the happening of the only event on which there could have been a defeasance, Astugueville contracted with Louge that such event should not occur, and that Louge should him[241]*241self perform, and not Astugueville, the act on the non-performance -of which the conveyance to Louge should become null; and for failure of Louge to comply in this respect he xvould have been responsible in damages. In the minds of the parties the contract involved no condition of defeasance which either expected or desired should occur.
The whole transaction amounted simply to a sale of whatever -estate or right Astugueville had, which might become null by the failure of Louge subsequently to perform his part of the contract, to which was coupled an agreement that Astugueville might repurchase the interest xvhich he then conveyed, together with all other interests in the lot, on terms stated.
The transcript does not contain a Statement of facts which can be oonsidered, and the case must be disposed of on the conclusions of fact and laxv contained in the record. We are of the opinion from those that the court did not err in holding that xvhatever estate or Tight Astugueville had in the lot passed by the instrument executed by him and Louge.
The court also found that the notice given of the sale at which the appellee bought was such as was contemplated by the agreement between the parties; that the sale" was fairly made, and that the property sold for a fair price; and xve are not prepared to say that the court below erred in any of those findings.
There being no error in the judgment, it is affirmed.
Affirmed.
[Opinion delivered February 29, 1884.]