"There is now pending and undecided in this court the above styled and numbered cause, on appeal from the district court of Travis county. The action is one by appellants to recover from J. K. Hawes on a promissory note for $3,750, and against J. K. Hawes and his wife to foreclose a deed of trust lien to secure the above note. The property incumbered by that instrument is in the record known as the `Live Oak Street Property,' situated in the city of Dallas, Dallas county, Texas. The appellees, in defense, pleaded that at the time the deed of trust was executed the property in controversy was their homestead, to which defense the appellants pleaded estoppel. The court submitted the homestead issue to the jury, and verdict and judgment thereon were in favor of appellees, from which the appellants appeal.
"We find the following facts: The deed of trust above mentioned was on the 7th day of January, 1891, duly and legally executed by appellees, incumbering the Live Oak street property to secure the amount of indebtedness sued for. The deed of trust contained a recital that the property therein described was not the homestead of appellees. At the same time they executed and delivered to appellants a written designation, in effect stating that their homestead was at that time on lot 6, on Watt street, in the city of Dallas. At the time of the execution of these instruments, Brown Bros. were the agents of appellants; and one Freeman acted as their agent in making the loan to Hawes of the amount sued for, and in negotiating the execution of the deed of trust and the written designation of the Watt street property as the homestead of appellees. Freeman at the time resided in the city of Dallas, where the property is situated. Neither he nor Brown Bros. took any steps to ascertain whether appellees were in actual possession and use of the Watt street or the Live Oak street property as their homestead at the time of the execution of the above-named instruments of writing; but we find that both Freeman and Brown Bros., acting for appellants in making the loan and accepting the homestead designation and the deed of trust, believed the representations and statements therein contained concerning the homestead of appellees were true, and upon the faith of such belief the contract was consummated.
And the evidence warrants the conclusion that neither Freeman nor Brown Bros. had any actual knowledge or notice of the actual place of residence of appellees at that time; nor did they make any effort or exercise any diligence to ascertain which of the two pieces of property the appellees were using and occupying as their homestead, but relied upon the statements and designation as contained in the above instruments. The court, in its charge to the jury, submitted to them the question whether the appellees at the time of the above transactions were in actual use of the Live Oak street or the Watt street property as their homestead; and from the evidence as found in the record, and as being consistent with the verdict of the jury, the conclusion of fact can be reached that the appellees at that time were in actual possession, use, and enjoyment of the Live Oak street property as their homestead, and at the time it was a residence and grounds suitable for that purpose. The evidence also warrants the conclusion that before the deed of trust was executed the Live Oak street property was also used by the appellees as their homestead. And we are authorized from the testimony to also reach the conclusion that the statements in the deed of trust and in the designation referred to, in effect stating that the Live Oak street property was not their homestead, were false. We also find that there is evidence in the record tending to show that before the execution of the deed of trust and the homestead designation, and at that time, the appellees were also in possession of and using the Watt street property in a way calculated to produce the impression that it was their homestead. In fact, there is testimony which tends to show that at the time mentioned they were in such manner using both the Live Oak and the Watt street properties. And there is some evidence which warrants the conclusion that the Watt street property was a residence suitable for homestead purposes. We also find that the facts bearing upon the use and possession of the Watt street property by the appellees was of such a character as would authorize the court to submit the issue to the jury whether at that time they were using and enjoying that property as their homestead; and the same conclusion could be reached as to the Live Oak street property, but the evidence of use of the latter for homestead purposes was much stronger than that which related to the Watt street property. The charge of the court did not submit to the jury any element of estoppel. The appellants requested that the court give the following charges, which are numbered 1 and 2, respectively, which the court refused, and which action is complained of by proper assignments of errors and propositions contained in appellants' brief: `If you believe from the evidence that at the time the loan was made, on January 8, 1891, the defendant J. K. Hawes was using as a homestead both the Watt street property and the Live Oak street property, and was not using either one of them exclusively as such, and that he and his wife, for the purpose of procuring the money represented by the note sued on, made the statements contained in the homestead designation and deed of trust, to the effect that they were then using and occupying the Watt street property as their homestead, and that no other property except the Watt street property constituted at the time any portion of their homestead, and that plaintiffs, through their agents, made the loan represented by the note sued on in this case on the faith of said statements, believing them to be true, and that but for such statements plaintiffs...
