Investors' Mortgage Security Co. v. Newton , 109 Tex. 478 ( 1919 )

Mr. Chief Justice PHILLIPS

delivered the opinion of the court.

The suit was one by the plaintiff in error in the District Court against the surviving widow and children of E. E. Newton, deceased, to establish, an indebtedness and lien upon certain land in Dallas County constituting Newton’s homestead at the time of his death, the claim having been previously presented for allowance to his administratrix and haying been refused by her.

'The original note and lien were given by Newton when he was a single man. More than a year afterwards he married. Later, he made the land-his homestead, but subsequently abandoned it and moved to Oklahoma, where he established the residence of himself and family. While living in Oklahoma, Newton applied to the plaintiff in error for the purpose of having it take up the loan and lien, which it did. It thereby became subrogated to the lien. The original note was by it renewed and extended at Newton’s request, a new note being taken for the amount of the original principal, the accrued interest and the expense incurred in the transaction, and a new deed of trust being executed, the wife not joining in either the new note or the deed of trust. Newton still resided with his family in Oklahoma when the transaction was closed, and there was then no homestead right in the land. After this, Newton returned to Texas with his family, occupying the land as his homestead. His estate proved insolvent.

The case differs in no essential respect from that of Hedeman v. "Newnom, this day decided. It is accordingly ruled by that decision to which we refer.

The judgments of the Court of Civil Appeals and District Court are. "reversed and the cause is remanded to the District Court with the direction that the claim he established as a valid and superior lien upon the land.

Reversed and remanded.