The appellant insists that under the evidence the applicant for injunction was not entitled thereto under the terms of the statute, and therefore the court should have denied, instead of allowing, the relief demanded by him. The petition sought to prevent a cloud being put upon the the title to the land by being sold under execution. Rev.St. 1911, art. 4643.
There can scarcely be a doubt, from the testimony presented to the court, that the lands in suit constituted the homestead of A. C. Vickers and of D. I. Vickers. The proof that the lands constituted the Vickerses' homestead would legally preclude the appellant from levying upon the same and selling it under their execution. The sale of the homestead is not fraudulent as to creditors.
Consequently the appellants had no substantial right as to the homestead tracts, even though there be a pretended sale to appellee legally void and inoperative as against the homestead owners. It is immaterial that the homestead owners are not before the court asking a cancellation of the deeds; that the appellee holding the bare title by a deed of record is in some legal position to the property to assert a right as against the execution.
The defense of illegal mortgage of the homestead is not available to the mere creditor. However, it seems to appear that there is an excess of land above 200 acres in the homestead tract of D. I. Vickers and wife. Such excess would be subject to the execution in suit unless the appellee acquired same by the deeds under circumstances not amounting to a fraudulent conveyance, legally speaking, as against creditors of the Vickerses.
That the appellee could not legally hold the excess as against the execution of appellants is plain, in view of the evidence appearing in the present record. For this reason there was error in rendering judgment in favor of appellee, perpetually restraining the execution, without any modification or limitation. The proof, however, respecting the excess is too meager and indefinite upon which to found a judicial finding here, and therefore the cause will have to be remanded.
Accordingly the *Page 323 judgment is reversed and the cause remanded. Justice Hodges, however, is of the opinion that the judgment ought to be remanded, with instructions to dismiss the application upon the ground that the applicant Lawler has shown no interest in the property that is the subject-matter of injunction. On Rehearing.
The motion of appellees is to the effect that, considering the several conveyances in evidence in connection with other facts, the trial court was authorized to find, as involved in the judgment, that there was in point of fact no excess of land above the homestead of the parties. We think the contention is correct. Therefore the judgment is affirmed, instead of reversed as heretofore determined.
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