Bonner, Associate Justice.
In this case, the plaintiff below, (appellee here,) Eliza Lacy, as the surviving wife of William C. Lacy, deceased, sues for her homestead right in certain property in Hardin county, including what is known as “ Sour Lake.” The defendants below resist her claim on the following grounds, substantially:
1. That the plaintiff" had never resided in Texas, and that [157]*157thereby she had forfeited any homestead rights to which she might otherwise have been entitled; and that the sale of this property by the administrator of the estate of William C. Lacy, under which they claim, was valid.
2. That William C. Lacy had never acquired such full, legal, and equitable title to the land out of which plaintiff claims her homestead, as would give her such right therein, for the alleged reason, that the same was incumbered with claims against it for the purchase-money; and that the money for its purchase had, in the first instance, been advanced by William Kr. Smith, and was consequently held by Lacy in trust for him.
3. That, in any event, William C. Lacy had only one-half undivided interest in the property, and that plaintiff could not set up the exclusive claim to the Sour Lake and the improvements, this being that part of the tract which gave it peculiar value.
The case was before this court on a former appeal. (Lacey v. Clements, 36 Tex., 661.) By the subsequent decree of the District Court, from which the present appeal is taken, the plaintiff was adjudged two hundred acres, of land as and for her homestead, to be selected by her so as to embrace the lake and improvements.
There is no controversy but that the plaintiff never came to Texas until some years after the death of the husband— she claiming to have remained away, with his consent, to superintend the education of their daughter, and subsequently by reason of the late war between the States.
In the case of Earle v. Earle, 9 Tex., 630, it was held, that the voluntary abandonment of the husband by the wife, without his consent, and without good cause, for several years immediately preceding his death, would forfeit her claim to the homestead.
In the case of Russell v. Randolph, 11 Tex., 460, where the husband, who had come to Texas alone, and after having arrived here determined to make this his home, died before [158]*158the family came, it was held, that the fact that they were not here would not defeat their right to his grant of land as a colonist.
In the case of Henderson v. Ford, 46 Tex., 627,—where the husband married in the State of Alabama in 1863, in contemplation of a permanent residence in Texas, having then a homestead here, which he had previously authorized his agent to sell, and afterwards, in the fall of that year, returned to Texas alone, and in a few months thereafter effected a sale through his agent, his wife subsequently, in 1865, joined him here, and remaining until his death and for two or three months thereafter, and never having in fact occupied the homestead,—it was held, that she was entitled to it as against the vendee of the husband.
From the above and the direct authority of this case on the former appeal, (36 Tex., 661,) we deduce the familiar principle, that the domicil of the husband draws to it the legal domicil of the family; and further, that the mere absence of the wife from the State, when not designed as an abandonment of the husband, but with his consent and with the intention to make his domicil here her future home, will not work a forfeiture of her homestead rights.
In the present case, the evidence tended to show that the absence of the plaintiff was for a legitimate purpose and with the consent of the husband, and that it was the fixed intention that she should come to Texas and reside with him. This would bring her without the rule of the case of Earle v. Earle, 9 Tex., 630, and within that of the other cases referred to, and would not defeat the homestead right. The court having thus found, the judgment on this issue should not be disturbed.
The next inquiry pertains to the title of William C. Lacy to the land out of which the plaintiff claims her homestead.
The testimony develops two dates of his title from which the right of the plaintiff to a homestead may be considered:
First, on May 13, 1857, at which time William C. Lacy [159]*159succeeded in purchasing the title of Josiah W. Pilant to the remaining interest in the Sour Lake tract, Ly which he was invested -with the full legal title to the whole of the same, having previously bought the interests of the other shareholders.
Second, on March 17, 1859, at which date William R. Smith sells to William C. Lacy an undivided half interest in the tract, Lacy having, on July 20, 1857, and subsequent to his purchase from Pilant, conveyed the whole tract to Smith. By this sale from Smith of March 17, 1859, Lacy became reinvested with the legal title to an undivided one-half interest.
Whether the above-named deed from Lacy to Smith was intended as a mortgage only, or was given to discharge a resulting trust in favor of Smith for having advanced the purchase-money, is not shown with that certainty which would warrant the court in considering these propositions, and they do not enter into the decision of the case.
We will first consider the homestead rights of the plaintiff, as based upon the legal title of William 0. Lacy to the whole tract on May 13, 1857.
It is contended by the plaintiff that her homestead right attached at that date, and that the subsequent sale to Smith, on July 20, 1857, was not valid as to her, she not having joined in the conveyance.
It is evident, from the testimony, that at this time the land was heavily incumbered with outstanding claims for the purchase-money owing by Lacy. It has long been the settled doctrine of this court, that a homestead is not acquired, as against parties holding prior equities and incumbrances, until the title to the land on which such homestead is sought to be established has been perfected by the payment of the purchase-money, and that all liens accruing before the homestead has been established must be raised, or it will be subject to forced sale for their satisfaction. (Farmer v. Simpson, 6 Tex., 303.)
[160]*160There is much force of reason and sound equity in the opinion of Chief Justice Hemphill, in White v. Shepperd, 16 Tex., 172, in regard to the restraint of the husband to dispose of the homestead without the wife’s consent, in which it is said: “This restriction applies where the husband has acquired full property in the land, and not where it is charged with preceding equities or incumbrances. These must be discharged, and they have precedence over the rights of the homestead privilege; and the right of the husband to make arrangements in relation to these incumbrances, or to renounce lands thus burdened or subject to conditions and contingencies, could not be questioned by the wife, in virtue of her remote right which might arise, if the incumbrances or conditions were ever discharged or removed, unless in cases where the husband is squandering the property, with the fraudulent design of depriving the wife of a homestead.”
In the case of Meyer v.
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Bonner, Associate Justice.
In this case, the plaintiff below, (appellee here,) Eliza Lacy, as the surviving wife of William C. Lacy, deceased, sues for her homestead right in certain property in Hardin county, including what is known as “ Sour Lake.” The defendants below resist her claim on the following grounds, substantially:
1. That the plaintiff" had never resided in Texas, and that [157]*157thereby she had forfeited any homestead rights to which she might otherwise have been entitled; and that the sale of this property by the administrator of the estate of William C. Lacy, under which they claim, was valid.
2. That William C. Lacy had never acquired such full, legal, and equitable title to the land out of which plaintiff claims her homestead, as would give her such right therein, for the alleged reason, that the same was incumbered with claims against it for the purchase-money; and that the money for its purchase had, in the first instance, been advanced by William Kr. Smith, and was consequently held by Lacy in trust for him.
3. That, in any event, William C. Lacy had only one-half undivided interest in the property, and that plaintiff could not set up the exclusive claim to the Sour Lake and the improvements, this being that part of the tract which gave it peculiar value.
The case was before this court on a former appeal. (Lacey v. Clements, 36 Tex., 661.) By the subsequent decree of the District Court, from which the present appeal is taken, the plaintiff was adjudged two hundred acres, of land as and for her homestead, to be selected by her so as to embrace the lake and improvements.
There is no controversy but that the plaintiff never came to Texas until some years after the death of the husband— she claiming to have remained away, with his consent, to superintend the education of their daughter, and subsequently by reason of the late war between the States.
In the case of Earle v. Earle, 9 Tex., 630, it was held, that the voluntary abandonment of the husband by the wife, without his consent, and without good cause, for several years immediately preceding his death, would forfeit her claim to the homestead.
In the case of Russell v. Randolph, 11 Tex., 460, where the husband, who had come to Texas alone, and after having arrived here determined to make this his home, died before [158]*158the family came, it was held, that the fact that they were not here would not defeat their right to his grant of land as a colonist.
In the case of Henderson v. Ford, 46 Tex., 627,—where the husband married in the State of Alabama in 1863, in contemplation of a permanent residence in Texas, having then a homestead here, which he had previously authorized his agent to sell, and afterwards, in the fall of that year, returned to Texas alone, and in a few months thereafter effected a sale through his agent, his wife subsequently, in 1865, joined him here, and remaining until his death and for two or three months thereafter, and never having in fact occupied the homestead,—it was held, that she was entitled to it as against the vendee of the husband.
From the above and the direct authority of this case on the former appeal, (36 Tex., 661,) we deduce the familiar principle, that the domicil of the husband draws to it the legal domicil of the family; and further, that the mere absence of the wife from the State, when not designed as an abandonment of the husband, but with his consent and with the intention to make his domicil here her future home, will not work a forfeiture of her homestead rights.
In the present case, the evidence tended to show that the absence of the plaintiff was for a legitimate purpose and with the consent of the husband, and that it was the fixed intention that she should come to Texas and reside with him. This would bring her without the rule of the case of Earle v. Earle, 9 Tex., 630, and within that of the other cases referred to, and would not defeat the homestead right. The court having thus found, the judgment on this issue should not be disturbed.
The next inquiry pertains to the title of William C. Lacy to the land out of which the plaintiff claims her homestead.
The testimony develops two dates of his title from which the right of the plaintiff to a homestead may be considered:
First, on May 13, 1857, at which time William C. Lacy [159]*159succeeded in purchasing the title of Josiah W. Pilant to the remaining interest in the Sour Lake tract, Ly which he was invested -with the full legal title to the whole of the same, having previously bought the interests of the other shareholders.
Second, on March 17, 1859, at which date William R. Smith sells to William C. Lacy an undivided half interest in the tract, Lacy having, on July 20, 1857, and subsequent to his purchase from Pilant, conveyed the whole tract to Smith. By this sale from Smith of March 17, 1859, Lacy became reinvested with the legal title to an undivided one-half interest.
Whether the above-named deed from Lacy to Smith was intended as a mortgage only, or was given to discharge a resulting trust in favor of Smith for having advanced the purchase-money, is not shown with that certainty which would warrant the court in considering these propositions, and they do not enter into the decision of the case.
We will first consider the homestead rights of the plaintiff, as based upon the legal title of William 0. Lacy to the whole tract on May 13, 1857.
It is contended by the plaintiff that her homestead right attached at that date, and that the subsequent sale to Smith, on July 20, 1857, was not valid as to her, she not having joined in the conveyance.
It is evident, from the testimony, that at this time the land was heavily incumbered with outstanding claims for the purchase-money owing by Lacy. It has long been the settled doctrine of this court, that a homestead is not acquired, as against parties holding prior equities and incumbrances, until the title to the land on which such homestead is sought to be established has been perfected by the payment of the purchase-money, and that all liens accruing before the homestead has been established must be raised, or it will be subject to forced sale for their satisfaction. (Farmer v. Simpson, 6 Tex., 303.)
[160]*160There is much force of reason and sound equity in the opinion of Chief Justice Hemphill, in White v. Shepperd, 16 Tex., 172, in regard to the restraint of the husband to dispose of the homestead without the wife’s consent, in which it is said: “This restriction applies where the husband has acquired full property in the land, and not where it is charged with preceding equities or incumbrances. These must be discharged, and they have precedence over the rights of the homestead privilege; and the right of the husband to make arrangements in relation to these incumbrances, or to renounce lands thus burdened or subject to conditions and contingencies, could not be questioned by the wife, in virtue of her remote right which might arise, if the incumbrances or conditions were ever discharged or removed, unless in cases where the husband is squandering the property, with the fraudulent design of depriving the wife of a homestead.”
In the case of Meyer v. Clans, 15 Tex., 516, a sale by the husband of partnership improved lots, for the purpose of partition, before the wife came to the State, was held valid as against her homestead rights.
It is not an unreasonable presumption, under all the facts and circumstances of this case, (the incumbrance upon the property, the advancement by Smith of money to relieve in part this incumbrance and that of a mechanic’s lien, and the intimate business relationship between Lacy and Smith,) that the intention of the parties in making the deed from Lacy to Smith, on July 20, 1857, and the subsequent reconveyance from Smith to Lacy of a half interest, on March 17, 1859, was to enable Lacy, by a sale of one-half interest in the property, to free it from incumbrance, and to invest them each with an equal undivided one-half interest in the whole tract. This presumption is rendered almost conclusive by the terms of the lease made between them a few days after the date of the last-named deed.
We think, under these circumstances and the authority of the above cases, there being no evidence of any intention to [161]*161defraud the plaintiff, that William C. Lacy had the power to make the sale to Smith, and that the homestead rights of the plaintiff were subject to this sale by the husband to discharge prior incumbrance's.
The plaintiff’s claims to the homestead, must then rest upon the title of William C. Lacy to the undivided one-half interest acquired by his deed from William E. Smith, of date March 17, 1859.
Before further disposing of the case, it may be remarked, that if her homestead rights attached at this time to this undivided interest, the subsequent execution of a mortgage upon the same to pay after-accruing rents, by the terms of the lease between Smith and Lacy, was invalid as against the plaintiff, she not having joined in the same. Besides, it does not appear, even had this mortgage been valid, that the same has ever been foreclosed, the sale by the administrator of Lacy not having been made under a decree to enforce it, but under one to pay debts generally. Notice that plaintiff was the wife of William C. Lacy, was given by the terms of the will, which appears to have been a part of the probate proceedings of his estate.
This, then, brings us to the remaining question in the case, and one upon which there has been considerable diversity of judicial opinion, viz.: Can the homestead interest attach to-property held by tenancy in common ?
The conflicting decisions upon this subject arise, doubtless,. to some extent, from different provisions of the several statutes on the subject of homesteads. We have no statute-defining the homestead, though the necessity of such legislation has been repeatedly suggested by the judicial department. One line of decisions, including some by this court,, favor the view that a homestead may be established on property held by tenancy in- common." (Williams v. Wethered, 37 Tex., 130; Smith v. Deschaumes, 37 Tex., 429; McClary v. Bixby, 36 Vt., 254; Thorn v. Thorn, 14 Iowa, 49; Horn v. Tufts, 39 N. H., 478; Greenwood v. Maddox, 27 Ark., 660; [162]*162Hewitt v. Rankin, 41 Iowa, 35, 44; Tarrant v. Swain, 15 Kan., 146.) Mr. Freeman, after a review of the authorities upon this subject, says: “But we see no sufficient reason, even in the absence of statutes directly bearing upon the subject, for holding that a general homestead act does not apply to lands held in co-tenancy. The fact that a homestead claim might savor of such an assumption of an exclusive right as is inconsistent with the rights of the other co-tenant, and that the maintenance of such claim might interfere with proceedings for partition, form no satisfactory reason for denying the exemption. * * * That he has not the whole, is a very unsatisfactory and very inhumane reason for depriving him of that which he has.” (Freem. on Co. and Part., sec. 54.)
Mr. Smyth, in commenting upon the line of decisions above referred to, says: “Ho satisfactory reason has been assigned why the rule in the foregoing States of Illinois, Iowa, Vermont, Texas, and Arkansas should not prevail, being in harmony with the object and policy of the homestead laws existing in the several States, and with the rule, ‘ any interest which might be sold under execution.’ ” (Smyth on Homesteads and Exemptions, sec. 120.)
Mr. Thompson, in his work on the same subject, favors the same view. (Sec. 188.) In note 2, sec. 180, this author collects several of the conflicting decisions upon this subject.
Even did we not feel bound by our own decisions, we are of opinion that the homestead right, in a proper case, would attach to property held by tenancy in common, but not to prejudice just rights of a co-tenant.
Should the property be capable of fair and equitable partition, so as both to preserve the homestead and protect the co-tenant, the respective rights of both parties could be easily adjusted. (Robinson v. McDonald, 11 Tex., 385; Williams v. Wethered, 37 Tex., 130.)
If incapable of partition, there is no constitutional dr other legal objection which would prevent a court of equity from [163]*163ordering a sale for the purpose of partition of the proceeds, in analogy to our statutes, and those of other States, authorizing such sales of property of estates, of minors, &c. (Freem. on Co. and Part., secs. 423, 540.)
The testimony shows that William C. Lacy died seized and possessed of an undivided one-half interest in the land in controversy, and had at the time an established homestead thereon, so as to include his joint interest-in that part of the same, with the improvements, known as Sour Lake; and that the property derives its value chiefly by reason of the lake and improvements. The testimony further shows, that, by the terms of the written lease between the parties, he held the same with the distinct understanding of his co-tenant, William B. Smith, that Smith’s interest therein should be respected. We are, therefore, of opinion that the plaintiff should be entitled to her homestead interest in the homestead thus designated, but that there was error in so much of the judgment below as awarded to her an exclusive interest therein, for which the judgment must be reversed. But inasmuch as the cause was submitted to the court without the intervention of a jury, and as there is a full statement of facts in the record, and as it seems that the ends of justice would be furthered by a speedy determination of this protracted litigation, and as the appellants have invoked the rule which obtains in such cases, that this court should here enter the judgment which should have been rendered below, it is therefore considered, and so ordered, adjudged, and decreed, that the judgment of the court below be reversed and reformed; that the plaintiff below do have and recover of the defendants below and intervenor, as and for her homestead, an interest of one-half in and to two hundred acres of land to be selected by her, without undue prejudice to the rights of the defendants, so as to include that place, with the improvements, on the tract of one thousand acres described in the record, part of the Stephen Jackson league, in Hardin [164]*164county, known as S'oiir Lake; that, in default of such selection by her within a reasonable time, say by the 1st of June, 1879, the same be so selected by three sworn commissioners, to be appointed by the District Court of said county of Hardin at its first session thereafter; that when said homestead tract shall be selected, the same shall be partitioned by three sworn commissioners, to be agreed upon by the parties, and in case of failure to so agree, then to be appointed by said court, who shall proceed to divide the same into two equal parts, according to quantity, quality, and value, one of which shall be allotted to the plaintiff below, free of the claims of the defendants and intervenor; that in the event the same be incapable of such partition in kind, then that said two-hundred-acre tract he sold by,order of said District Court, on such terms as may be agreed upon by the parties, or in case of failure to agree, as in the discretion of the judge presiding may be most to the interest of all parties interested, the proceeds to be then divided; that so much of the decree of the County Court of said county pertaining to the estate of William C. Lacy as ordered a sale of the homestead which may be thus designated, and so much of the proceedings and sales made by virtue thereof, and the subsequent sales made under the title thus acquired, be, and the same are hereby, set aside and held for naught; that appellants recover of appellee the costs in and about this appeal expended, and that appellee recover of them all other costs of suit heretofore incurred; and that of remaining'costs to be hereafter incurred, the plaintiff below pay one-half and the defendants the other half, unless some legal or equitable cause should intervene, which in the judgment of the court below should require the same to be otherwise taxed. It is further ordered, that in the event a sale of said property be necessary for partition, further proceedings be stayed until Elizabeth Amanda Stone, only child and heir of William C. Lacy, be made a party. It is further ordered, that this judgment be certified for [165]*165observance by the court below, in accordance with the terms hereof.
Reversed and reformed.
[Chief Justice Moore did not sit in this case.]