In other words, before anything out of this excess land becomes available for the payment of the general creditors of the estate, the vendor's liens against the entire 295 acres must first be paid therefrom in the interest of the homestead claimants. 29 Corpus Juris, p. 877, sec. 242(4), p. 1013, sec. 504; Prigden v. Warn, 75 Tex. 588, 15 S.W. 559; Mackey v. Wallace, 26 Tex. 526; Harrison v. Obertheir, 40 Tex. 385; Chandler v. Young (Texas Civ. App.), 216 S.W. 484; Pease v. Randle (Texas Civ. App.), 191 S.W. 566; Pugh v. Whitsitt (Texas Civ. App.), 161 S.W. 953; King v. Hapgood Shoe Co., 21 Texas Civ. App. 217[ 21 Tex. Civ. App. 217], 51 S.W. 532; Interstate Building, etc. Association v. Tabor, 21 Texas Civ. App. 112[ 21 Tex. Civ. App. 112], 51 S.W. 300; Henkle v. Bohuke, 7 Texas Civ. App. 17[ 7 Tex. Civ. App. 17], 26 S.W. 645; Colwick v. Wright (Texas Civ. App.), 275 S.W. 152, 155; Deaton v. Southern Irr. Co. (Texas Civ. App.), 144 S.W. 294; Nolan v. Nolan, 155 Calif., 476, 482, 101 P. 520, 523; Freeman on Executions (3d Ed.), vol. 3, sec. 440; Pomeroy's Equity Jurisprudence (2d Ed.), vol. 5, sec. 2292. In Corpus Juris, supra (sec. 242), the rule is stated as follows:
The court erred in refusing to give the special instruction requested by the defendant, to the effect, that Drane Company had the right to require Mrs. Richmond and the People's National Bank to marshal their securities, and to make their indebtedness out of other securities held by them, before resorting to their securities upon the hay mortgaged to Drane Company; and that if the security given by LaMoyne to Drane Company, was of greater value than the hay-press he bought from Drane Company, that the jury should acquit defendant. Willis v. Holland, 36 S.W. Rep. 329; Rogers v. Blum, 56 Tex. 1; Brown v. Thompson, 79 Tex. 58 [ 79 Tex. 58]; Henkel v. Bohenke, 26 S.W. Rep. 645; Wohrmund v. The Edgewood Distilling Co., 32 S.W. Rep. 228. The title to property must pass from the injured party to the accused.
In view of the particular facts of this case and by reason of the earnest and able presentation of his contentions in the brief filed herein by counsel for appellant, and because of the importance of the question, we have discussed appellant's proposition and contentions at length. Constitution, art. 16, ยงยง 50 and 51; articles 3832 to 3839, inclusive, R.S. 1925; Kerens National Bank v. Stockton, 120 Tex. 546, 40 S.W.2d 7, 77 A.L.R. 1122; Pridgen v. Warn, 79 Tex. 588, 15 S.W. 559; King v. Hapgood Shoe Co., 21 Tex. Civ. App. 217, 51 S.W. 532, 533; Henkel v. Bohnke, 7 Tex. Civ. App. 16, 26 S.W. 645, and authorities therein discussed. Simkins on Equity, c. 63, p. 613; 29 Corpus Juris, Homesteads, par. 242; 22 Tex.Jur. p. 11, etc., and authorities therein cited.
In case of such exemptions, the debtor has a right to have the nonexempt property included in the primary incumbrance exhausted in satisfaction thereof, before resort is had to his exempt property. Pridgen v. Warn, 79 Tex. 588, 15 S.W. 559; Henkel v. Bohnke, 7 Tex. Civ. App. 16, 26 S.W. 645, 646; 26 Cyc. 933. This right is also classed as an equitable one and may be waived by the debtor.
The deed from Abbitt, without his wife joining therein, conveyed to Adams all the community interest in the land, except the homestead claim. Whetstone v. Coffey, 48 Tex. 269; Henkel v. Bohenke, 7 Tex. Civ. App. 16, 26 S.W. 645. But, while they were on this land and at the time when they had not acquired another homestead, Mrs. Abbitt joined her husband in a deed to S. H. Meadows, as we have already stated, purporting to convey him the entire 640 acres.
If this can be done, without selling the homestead equity, conforming to public policy, requires that it shall be done. King v. Hapgood, 21 Tex. Civ. App. 217, 51 S.W. 534, 535; Henkel v. Bohnke, 7 Tex. Civ. App. 16, 26 S.W. 645; Pridgen v. Warn, 79 Tex. 594, 15 S.W. 559. If upon the trial of this cause, the facts alleged in the petition are shown to be true, the trial court should hold:
We do not believe she can be heard to invoke any equitable principle, when, under the facts, equity and justice demand that she be not permitted to do so. The rule announced in the cited cases was applied in the case of Henkel v. Bohnke, 7 Tex. Civ. App. 16, 26 S.W. 645, in which it was held that a wife is estopped by making a conveyance of part of the land subject to a lien, as against the purchaser, from asserting as against him in equity to have his land sold before the homestead. In this case, Mrs. Loe joined in the conveyance of all lots except one, and it is not negatived that she privily acknowledged the conveyances.
We think that the Spruills are in the same position, so far as Crawford is concerned, as if, instead of selling to Hurst, for a consideration largely to be paid, they had sold to Crawford the 199.3 acres for a cash consideration. In such a case, Crawford could have demanded that the 213 acres be first sold for the satisfaction of the Boon debt Henkel v. Bohnke, 7 Tex. Civ. App. 16, 26 S.W. 645. The Spruills would have been estopped to assert as against Crawford an equity to have his land sold before the homestead.
For an extensive collation of authorities upon the subject, in addition to the ones cited In Cyc., see 34 Cent. Dig. title "Marshaling Securities," col. 357; 12 Dec. Dig. title "Marshaling Securities," ยง 3. The only decision which we have found in our Texas courts bearing upon that question is the case of Henkel v. Bohnke, 7 Tex. Civ. App. 16, 26 S.W. 645, in which it was held that, as the practical effect in that case of enforcing the rule for marshaling securities would be to subject the homestead of the debtor to the satisfaction of a debt contrary to the exemption established by our Constitution and statutes, the equitable rule noted would not apply. We concur in the reasoning and conclusion there announced.
This being the case, Turner and wife had the right, for the protection of their homestead, to have the portion so purchased by appellant from the trustee in bankruptcy sold first for the satisfaction of the vendor's lien existing against the entire premises, as was decreed by the court. Henkel v. Bohnke, 7 Tex. Civ. App. 17, 26 S.W. 645; Baughn v. Allen, 68 S.W. 207; Pridgen v. Warn, 79 Tex. 595, 15 S.W. 559; King v. Shoe Co., 21 Tex. Civ. App. 217, 51 S.W. 533. We find no error, and the judgment is affirmed.