#### WM. WAHRMUND, et al., v. MERRITT & METCALF.

SUPREME COURT,

AUSTIN TERM, 1883.

*]'e,odor's Lien*— Balnoyation—Homestead. *— A*homestead cannot be acquired as against a vendor’s lien.

*Hame.*— The assignee of certain preferred claims against an estate, said claims being a lien upon land, is subrogated to all the rights possessed by tlie original lien holders.

Appeal from Tom Green County.

*Hancock & 7Vest,*for appellant.

*Jno. A. Green and "Walton &*Hill, for appellees.

Opinion by

Willie, C. J.

7fc appears from the proof in this cause that the 200 aeres claimed as a homestead by the appellee, Fannie Metcalf, was part of a tract of 040 acres purchased by Taylor from James, the administrator of F. P. Sawyer, deceased. At what precise date this purchase was made is not shown, but it was confirmed by the proper county court, on the 29th of May, 1878. The deed to Taylor was not made uutil the 22(3 of October thereafter; and contemporaneously with the making of this deed, Taylor executed to William Wahrmund a deed of trust, upon the same (340 acres of land to secure the payment of s x promissory notes given by him to said William Wahrmund and the other appellants in this .cause. The recitals of the deed of trust show the purchase of the land by Taylor for $7,500 cash, the confirmation of the sale by the county court, and the fact that this entire purchase money was by order of the county court, to be used in paying certain preferred claims held by the beneficiaries of the trust *194deed. They furthermore show an arrangement amongst all parties concerned, to this effect, that these beneficiaries, preferred creditors as before stated, were to receipt to the administrator for the amount due on their claims, and that lie was to receipt to Taylor for the purchase money of the land, and that Taylor was to execute his promissory notes to these creditors for the balance due them from Sawder’s estate, securing them by the vendoi’s Jien and a deed of trust upon the 640 acres of land so purchased by Taylor from Sawyer’s estate.

Sawyer’s estate was thus paying a debt it owed appellants by transferring to them a debt it held against Taylor. Tn pursuance of this arrangement Taylor executed to each of these creditors a note for the amount of money due him from Sawyer’s estate, and secured the payment of these notes by a deed of trust on the 640 acres of land to Wm. Wahrmund, one of the creditors, for the benefit of himself and the others, and received a deed for the land from Sawyer’s administrator.

. All these matters occurred *on*the same day and were made with the consent of all parties interested, and were parts and parcels of the same transaction. The question is, “did the transaction amount to a subrogation of appellant to the lien held by Sawyer’s administrator to secure the purchase money of the laud ? If it did then neither Taylor in his lifetime, nor Fannie Metcalf after his death, could claim any homestead rights in any part of the land, as against the parties holding such lien upon it. For although Taylor had lived upon the land and occupied it as a place of residence for himself and family for several years before the execution of these deeds, yet he had no title to the land; was merely a tenant of Sawyer’s, and of course could have no homestead right in the land, and more especially against Sawyer from whose estate he subsequently purchased.

It is clear that previous to the date of the execution of the several instruments before mentioned, Taylor had not paid the purchase money. The order of the court confirming the sale, directed a deed to be made to him upon complying with the terms of sale, which was the payment of $7,500 in cash. The recitals in the deed of trust show that this money was not paid, but that an arrangement had been made to cancel it by Taylor’s assuming debts that Sawyer’s estate owed, the holder of these debts to have the same lien *195upon the land that Sawyer’s estate possessed for the purchase money, to be evidenced by a deed of trust upon the same land. The transaction may be considered either as a transfer to appellants by the administrator of the claim he had against the land, growing out of Taylor’s purchase, in consideration of their releasing the estate from all liability to them; or it may be regarded as if the appellants had furnished Taylor with the means of paying the purchase mom*y of the land upon an agreement that they were to have the same remedies to recover the money, thus provided, that the oiiginal vendor possessed to enforce his demand.

So well is it established in our own State, by frequent decisions, that the effect of such a transaction is to subrogate the parties who have purchased the claim against the vendee, or have furnished him the means to pay the debt due the vendor, to all the rights, remedies and liens previously held by the latter to enforce his debt, that there will be no necessity to strengthen the principle by argument., but we merey refer to authorities to sustain it: Hicks v. Morris, 57 Texas 658; Dillon v. Kauffman & Runge, Galveston term, 1883; Joiner v. Perkins, decided at present term.

The lien held by the administrator of Sawyer was a vendor’s lien to secure the purchase money (Wright v. Heffner, 57 Texas), and this passed to appellants by force of the circumstances under which the transaction was made, as well as under the express agreement of the parties as stated in the deed of trust. It is urged that the amount secured to the appellants in the deed of trust is less than the purchase money which Taylor was to pay for the land, and lienee there can be no subrogation. If the amount were greater there might be some question as to whether or not the excess was secured by the original lien, but the reduced sum is certainly thus secured, being less than the amount for which the lien was held upon the land. The difference seemed to have been caused by payments previously made by Taylor to Sawyer’s estate. If so, it was nothing but proper that he should have credit for them, and the lien should not extend beyond the balance justly due by him to the estate. But no matter what that amount was, if secured as we have seen by a lien on the 640 acres of land, it held the whole tract bound for its payment. The homestead portion was as much subject as any other, for no homestead had been acquired as against the lien. Dillon v. Kauffman and Runge, *supra.*Nor were the appellees entitled *196to have a partition of the land so as to have an allowance set apart to her equivalent to the amount of money, which Tajdor had paid on the notes. The balance of the claim unpaid was a lien upon the whole tract, as no part of it had been released in any manner whatever. As to the presentation of the deed of trust to Taylor’s administrator, it is sufficient to say that there is nothing in this record which shows that it was not properly presented or brought to. the knowledge of the county court so as to have the debts- secured by it properly classified. No objection of that character was urged against the deed of trust either in the county or district court; and in fact no defense of any character was set up by Taylor’s administrator, but the contest was made by Miss Metcalf alone, as to the 200 acres claimed to be a homestead. She did not claim that the deed of trust was not properly presented, but that this particular portion of the land was not subject to it. The application of appellants alleged that their claims -had been properly presented and allowed; and the finding of the court was that the claims had been properly probated, and were in effect a lien on the 640 acres, less the 200 acres to which title was set up by Miss Metcalf — exempted because of their homestead character. From this finding there is no appeal or objections filed in this court by the appellees.

The affidavit upon which the claims were allowed is not contained in the record, but it is merely stated they were allowed and approved by the administrator and the county judge. As no objection was made below to their taking rank as secured claims, on this account we must presume that the affidavit contained every thing necessary to their proper classification. Besides it has been intimated by this court in the case of Danzy v. Swinney, 7 Tex., 617, that the law only requires that the claim be allowed and approved, except when the evidence of it is contained in the mortgage or deed of trust alone. We think that the record shows the notes and the deed of trust sufficiently established; that they were secured by a lien upon the entire 640 acres existing long previous to the date when Taylor acquired any homestead right in the land, and that the appellants were subrogated to all the liens held by Sawyer’s administrator to secure the payment of the money for which the land was bought by Taylor.

The court below, therefore, erred in setting apart any portion of it to Fannie Metcalf as a homestead free of such lien. For this *197error the judgment must be reversed aud reformed so as to decree that the entire 640 acres of land be declared subject to such lien, and ordered sold for its satisfaction. This decision to be certified to the district court of Tom Green county, with directions to reverse the judgment of the county court of that county, aud to order it to enter up a decree in accordance with this opinion.

West, ,T., not sitting in this case.