Wheeler, C. J.
There is nothing in the objection that James M. Cox and his wife, the defendant’s alleged vendors, were not made parties to the suit. There is no objection that they were not made parties in the court below, nor were they necessary parties to the suit to try title. That one of the parties to an action of trespass to try title claims under a deed alleged to be void, has never been deemed to require that the vendor in the deed be made a party.
[123]*123On the question of the abandonment of the homestead by James M. Cox and his wife, we think there can be no room to hesitate. Independently of the deed of conveyance to the defendant, we think the evidence sufficient to warrant the jury in finding the fact of abandonment. But the deed is evidence certainly of a very decisive character to show that the grantors had relinquished their title, and no longer .had any claim to the property as a homestead. If a real transaction, it divested the grantors of their right; if simulated, it is not for the parties to the de.ed to allege its nullity for their own advantage. It certainly is not for the defendant, who rests his defence upon the alleged conveyance, to object to the plaintiff’s title on the ground that the right remained in his alleged vendors, who had assumed to relinquish both the right and the possession. On the question of the abandonment or relinquishment of the homestead by the defendant’s alleged vendors, we think the evidence amply sufficient.
The true and controlling question in the case was not whether the deed, under which the defendant claims title, was void as to creditors within the purview of the statute of frauds, but whether, in point of fact, it was made to pass, and did pass the title as between the parties thereto, or whether the alleged sale and conveyance was merely simulated, and contrived and intended to enable the grantee to hold the property for the grantor after he had chosen to abandon it as his homestead, and thus protect it from the claims of creditors. If there was an actual sale or transfer of the property, as between the parties to the conveyance, it can not be avoided on the ground that it was fraudulent as to creditors; because it would not withdraw from their reach any property which the law had not already withdrawn from them. The creditors could acquire no claim upon the homestead, to subject it to the satisfaction of their demands, while it remained the homestead. It was effectually withdrawn from their power by the law. The sale, or voluntary conveyance of it, would, hi no way, affect their existing rights and remedies; and, as has been said, it would be a strange anomaly to hold that to be a fraud upon creditors, which, in no respect, varied their rights or remedies. Hence, it has been held in England that, in order to make even a voluntary convey[124]*124anee void as to creditors, it is indispensable that it should transfer property which would be liable to "6e taken in execution for the payment of debts. (1 Story’s Eq., § 367; Wood v. Chambers, 20 Tex. R., 247.) A" conveyance of property which is exempt by law from execution or forced sale, can not be a fraud upon creditors. Such a conveyance is not within the purview of the statute of frauds. If, therefore, the deed under which the defendant claims, was really intended to operate a transfer of the property, as between the parties thereto, it is immaterial whether it was upon consideration, or voluntary, it was in no way injurious to the rights of creditors, and can not be deemed to have been in fraud of their rights. It cannot be impeached upon that ground. But if, on the contrary, there had been no actual transfer of the property as between the parties; if the deed, or pretended- transfer, was simulated and colorable merely, made upon a secret trust that the vendee should hold.the property for the vendor after the latter had abandoned the use of it as a homestead, a mere pretence and contrivance to protect the property from the claims of the creditors of the vendor after, by its abandonment as a homestead, it had become liable to be taken in execution; if, in fine, the conveyance was not intended to be operative as between the parties, and did not pass the title, the property, of course, remained in the vendor, and was liable to be taken in execution for his debts. Whether such was the real character of the transaction, was the question in this case. That was the issue presented by the pleadings, and the question distinctly submitted by the court to the jury for their decision. Accordingly, the jury were instructed that if the land in question was the homestead of James M. Cox, at the date of the deed to Isaac, in September, 1854, and if Isaac purchased the land, and the deed was executed in September, 1854, as it purported, and Isaac had lived on the land .as his homestead since his vendors left, the plaintiff could not recover. There was no question that the defendant had so lived upon the land, and under this charge, if the jury had believed the alleged purchase a verity, and that the deed had been in part executed purposely to pass the title, they must have found for the defendant. The court further instructed the jury that if there was no sale of the land [125]*125but the pretended sale, and the subsequent possession of the defendant was a mere fraudulent device or scheme to enable Isaac to hold the land for James, and protect it from his creditors, and that James had abandoned his homestead, then, after its abandonment as a homestead, it became liable to be levied on and sold for his debts. The decision of the case was thus placed upon the true ■ground, and made to turn upon the question whether there had been an actual transfer of the' property, or only a pretended transfer.
The jury were instructed as to what constituted an abandonment of the homestead, as fully and favorably to the defendant as the facts required; and upon this point, as we hgve seen, the case is free from difficulty.
The only part of the charge of the court to which there is any apparent ground for the appellant to object, is the concluding observation respecting the inference which may be drawn from the failure of a party to introduce explanatory evidence concerning a transaction charged to be fraudulent, when it is in his power to explain. We do not think this observation of the court can have mislead the jury, or occasioned any injury to the appellant. It was not an error of law, and can scarcely be deemed a charge upon the weight of evidence. It was not unjust in itself, or when considered in its application to the case. As an abstract ques tion, as we have seen, it was not material whether the alleged conveyance was upon a consideration, or voluntary, and consequently it was not material to prove the payment of the purchase money. But in reference to the pleadings and the evidence conducing to show a want of honesty and fair dealing in the parties to the transaction, it might have been very material to the defendant to prove that he had actually paid, or contracted to pay, for the land, or to produce some evidence to show that the alleged sale was real, and not simulated. The defendant had alleged a purchase of the property for a valuable consideration. This allegation was traversed specially by the plaintiff, and he averred that no consideration in fact passed, but that the pretended deed was a sham, and the pretended sale was collusively and fraudulently made, for the purpose of concealing the title to the property, and that no [126]*126title really passed to the defendant thereby, but the title remained in the pretendéd vendor.
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Wheeler, C. J.
There is nothing in the objection that James M. Cox and his wife, the defendant’s alleged vendors, were not made parties to the suit. There is no objection that they were not made parties in the court below, nor were they necessary parties to the suit to try title. That one of the parties to an action of trespass to try title claims under a deed alleged to be void, has never been deemed to require that the vendor in the deed be made a party.
[123]*123On the question of the abandonment of the homestead by James M. Cox and his wife, we think there can be no room to hesitate. Independently of the deed of conveyance to the defendant, we think the evidence sufficient to warrant the jury in finding the fact of abandonment. But the deed is evidence certainly of a very decisive character to show that the grantors had relinquished their title, and no longer .had any claim to the property as a homestead. If a real transaction, it divested the grantors of their right; if simulated, it is not for the parties to the de.ed to allege its nullity for their own advantage. It certainly is not for the defendant, who rests his defence upon the alleged conveyance, to object to the plaintiff’s title on the ground that the right remained in his alleged vendors, who had assumed to relinquish both the right and the possession. On the question of the abandonment or relinquishment of the homestead by the defendant’s alleged vendors, we think the evidence amply sufficient.
The true and controlling question in the case was not whether the deed, under which the defendant claims title, was void as to creditors within the purview of the statute of frauds, but whether, in point of fact, it was made to pass, and did pass the title as between the parties thereto, or whether the alleged sale and conveyance was merely simulated, and contrived and intended to enable the grantee to hold the property for the grantor after he had chosen to abandon it as his homestead, and thus protect it from the claims of creditors. If there was an actual sale or transfer of the property, as between the parties to the conveyance, it can not be avoided on the ground that it was fraudulent as to creditors; because it would not withdraw from their reach any property which the law had not already withdrawn from them. The creditors could acquire no claim upon the homestead, to subject it to the satisfaction of their demands, while it remained the homestead. It was effectually withdrawn from their power by the law. The sale, or voluntary conveyance of it, would, hi no way, affect their existing rights and remedies; and, as has been said, it would be a strange anomaly to hold that to be a fraud upon creditors, which, in no respect, varied their rights or remedies. Hence, it has been held in England that, in order to make even a voluntary convey[124]*124anee void as to creditors, it is indispensable that it should transfer property which would be liable to "6e taken in execution for the payment of debts. (1 Story’s Eq., § 367; Wood v. Chambers, 20 Tex. R., 247.) A" conveyance of property which is exempt by law from execution or forced sale, can not be a fraud upon creditors. Such a conveyance is not within the purview of the statute of frauds. If, therefore, the deed under which the defendant claims, was really intended to operate a transfer of the property, as between the parties thereto, it is immaterial whether it was upon consideration, or voluntary, it was in no way injurious to the rights of creditors, and can not be deemed to have been in fraud of their rights. It cannot be impeached upon that ground. But if, on the contrary, there had been no actual transfer of the property as between the parties; if the deed, or pretended- transfer, was simulated and colorable merely, made upon a secret trust that the vendee should hold.the property for the vendor after the latter had abandoned the use of it as a homestead, a mere pretence and contrivance to protect the property from the claims of the creditors of the vendor after, by its abandonment as a homestead, it had become liable to be taken in execution; if, in fine, the conveyance was not intended to be operative as between the parties, and did not pass the title, the property, of course, remained in the vendor, and was liable to be taken in execution for his debts. Whether such was the real character of the transaction, was the question in this case. That was the issue presented by the pleadings, and the question distinctly submitted by the court to the jury for their decision. Accordingly, the jury were instructed that if the land in question was the homestead of James M. Cox, at the date of the deed to Isaac, in September, 1854, and if Isaac purchased the land, and the deed was executed in September, 1854, as it purported, and Isaac had lived on the land .as his homestead since his vendors left, the plaintiff could not recover. There was no question that the defendant had so lived upon the land, and under this charge, if the jury had believed the alleged purchase a verity, and that the deed had been in part executed purposely to pass the title, they must have found for the defendant. The court further instructed the jury that if there was no sale of the land [125]*125but the pretended sale, and the subsequent possession of the defendant was a mere fraudulent device or scheme to enable Isaac to hold the land for James, and protect it from his creditors, and that James had abandoned his homestead, then, after its abandonment as a homestead, it became liable to be levied on and sold for his debts. The decision of the case was thus placed upon the true ■ground, and made to turn upon the question whether there had been an actual transfer of the' property, or only a pretended transfer.
The jury were instructed as to what constituted an abandonment of the homestead, as fully and favorably to the defendant as the facts required; and upon this point, as we hgve seen, the case is free from difficulty.
The only part of the charge of the court to which there is any apparent ground for the appellant to object, is the concluding observation respecting the inference which may be drawn from the failure of a party to introduce explanatory evidence concerning a transaction charged to be fraudulent, when it is in his power to explain. We do not think this observation of the court can have mislead the jury, or occasioned any injury to the appellant. It was not an error of law, and can scarcely be deemed a charge upon the weight of evidence. It was not unjust in itself, or when considered in its application to the case. As an abstract ques tion, as we have seen, it was not material whether the alleged conveyance was upon a consideration, or voluntary, and consequently it was not material to prove the payment of the purchase money. But in reference to the pleadings and the evidence conducing to show a want of honesty and fair dealing in the parties to the transaction, it might have been very material to the defendant to prove that he had actually paid, or contracted to pay, for the land, or to produce some evidence to show that the alleged sale was real, and not simulated. The defendant had alleged a purchase of the property for a valuable consideration. This allegation was traversed specially by the plaintiff, and he averred that no consideration in fact passed, but that the pretended deed was a sham, and the pretended sale was collusively and fraudulently made, for the purpose of concealing the title to the property, and that no [126]*126title really passed to the defendant thereby, but the title remained in the pretendéd vendor. The defendant was thus fully apprised of the distinct ground on which his title was impeached. If he had really purchased the land for a valuable consideration, as he alleged, it is scarcely to be supposed that he could not have produced some evidence of it, or of the real nature of the transaction. That he failed to do so, and relied solely on his deed, notwithstanding the allegations and evidence by which it was impeached as fraudulent, was certainly a circumstance proper for the consideration of the jury, in connection with the evidence in the ease. The natural and reasonable inference would be unfavorable to the reality and verity of the alleged purchase, and the honesty of the transaction. That the attention of the jury was called to the position which the defendant occupied, and they'were apprised of the circumstances which it was proper for them to consider in arriving at a conclusion upon the issue presented for their decision, can scarcely be deemed a wrong or injury to the appellant, or a ground for reversing the judgment. We do not think there was anything in the charge of the court calculated improperly to influence the minds of the jury to the prejudice of the defendant. The true issue in the case and the law applicable to it was so clearly presented, that it is scarcely possible that a jury of ordinary intelligence could have found a verdict for the plaintiff, unless satisfied that the alleged purchase was simulated, and that the title did not, in fact, pass by the deed as between the parties, but was held by the defendant in secret trust for his alleged vendor. .There certainly was evidence tending to that conclusion. The fact that the deed, though made in September, 1854, was held back and not recorded until the result of the suit against the alleged grantor was known; the statement of the defendant that the land would be his when it was paid for, made, it seems, after the deed purported to have been executed, and when, if there was no secret understanding between the parties inconsistent with the purport of the deed, the land was his; the failure of the defendant to produce any evidence confirmatory of the allegation of a purchase, or of the fairness of the transaction; and the relationship of the parties, though unimportant in themselves, taken [127]*127singly, yet when taken collectively, in connection with the ample proof that the alleged grantor was acting fraudulently and endeavoring, professedly and within the knowledge of the defendant, to convey away his property in order to place it. beyond the reach of an execution upon the judgment under which the plaintiff purchased, must be regarded as evidence conducing to support the verdict. Considering the difficulty of obtaining direct evidence in a case of this nature, and looking to the whole evidence before the jurgg’ we can not say that it was not sufficient to warrant the verdict.
We are of opinion that there is no error in the judgment, and that it be affirmed.
Judgment affirmed,
Mr. Justice Bell having presided in this case, did not sit.