The parties agreed that the titles respectively asserted by them emanated from L. C. Powell and Mrs. S.E. Powell, his wife. Therefore it can be said that the legal effect of the deed to Stribbling was to vest in him a good and perfect title to the land in controversy, unless at the time the deed was executed it was the homestead of appellant and his wife. If it was then their homestead, the interest or estate owned by them did not pass to Stribbling, because appellant's wife did not join him in the execution of the deed purporting to convey same. Const. art. 16, § 50; Sayles' Stat. art. 636. The judgment involves a finding that the land was not then the homestead of appellant and his wife. Unless the contrary of this finding was established by the testimony, the judgment is not erroneous as claimed by appellant, and it should be affirmed.
In determining the question indicated, the inquiry first suggested by the record is: Did appellant own an interest in the land entitling him and his wife to claim it as a homestead? His contention is that he did in one or both of two ways: (1) That as an adopted heir of L. C. Powell on the death of the latter he took by inheritance an undivided interest in it, and owned it as a tenant in common with the other heirs, and the widow, of said L. C. Powell; and (2) that by virtue of the instrument set out in the statement he owned a life estate in it.
It is settled in this state that a tenant in common may acquire a homestead in land he owns in common with others. Clements v. Lacy,51 Tex. 150; Jenkins v. Volz, 54 Tex. 636; Southwestern Mnfg. Co. v. Swan, 43 S.W. 813; Lewis v. Sellick, 69 Tex. 379, 7 S.W. 673; Griffin v. Harris, 39 Tex. Civ. App. 586, 88 S.W. 492. If, therefore, it should be staid that it appeared from the testimony that appellant as a tenant in common with others owned an interest in the land, it should be said, further, that during his first marriage it became his
homestead, for the testimony was undisputed that he and his first wife occupied and used it as their homestead. If it became their homestead, and if the finding involved in the judgment that by abandonment it had ceased to be homestead at the time the deed to Stribbling was executed should be said to be without support in the testimony, which in the view we take of the case it will not be necessary to determine, it would follow that the judgment in favor of appellee is erroneous. For, as stated above, the husband cannot, without the consent of the wife evidenced as required by law, by his deed convey the homestead. Wheatley v. Griffin, 60 Tex. 209; Southern Oil Co. v. Colquitt,28 Tex. Civ. App. 292, 69 S.W. 169; Coker v. Roberts, 71 Tex. 597,9 S.W. 665. The burden was on appellant to prove his contention that as an adopted heir of L. C. Powell, deceased, he owned an interest in the land to which a homestead right had attached at the time he joined in the deed to Stribbling. He could have become such an heir only in the way provided by the statute, for heirship by adoption was not known to the common law. Eckford v. Knox, 67 Tex. 204, 2 S.W. 372; Abney v. De Loach,84 Ala. 393, 4 So. 757; Kennedy v. Boroh, 226 Ill. 243, 80 N.E. 767. The statute provided that "any person wishing to adopt another as his legal heir may do so by filing in the office of the clerk of the county court of the county in which he may reside, a statement in writing, by him signed and duly authenticated or acknowledged, as deeds are required to be, which statement shall recite in substance that he adopts the person named therein as his legal heir, and the same shall be admitted to record in said office." Sayles' Stat. art. 1. It further provided that "such statement in writing, signed and authenticated or acknowledged, and recorded as aforesaid, shall entitle the party so adopted to all the rights and privileges, both in law or equity, of a legal heir of the party so adopting him." Sayles' Stat. art. 2. It does not appear from the record before us that the requirements of the statute were complied with by L. C. Powell, or that he ever made an effort to comply with them. The testimony relied upon to prove that appellant had been adopted by said L. C. Powell as his heir consisted alone of declarations by said L. C. Powell and his wife that he was their adopted child. That testimony was not sufficient to establish that he had been lawfully adopted by L. C. Powell as his heir. McColpin v. McColpin's Estate, 75 S.W. 824; Moore v. Bryant, 10 Tex. Civ. App. 131, 31 S.W. 223. Therefore it cannot be said that the finding involved in the judgment that appellant was not an adopted heir of L. C. Powell was erroneous. Hence we conclude that the contention made that as such an heir appellant was a tenant in common with others owning undivided interests in the land, and for that reason entitled to claim a homestead right in it, should be overruled.
But, notwithstanding appellant as an heir of L. C. Powell did not own an interest in the land, if he owned a life estate in it by virtue of the instrument set out in the statement, the land might have been his homestead; for it is also settled in this state that the owner of a life estate in land can assert a homestead right in it. Silverman v. Landrum, 56 S.W. 107; Wheatley v. Griffin, 60 Tex. 209. The question arises, then: Did it appear that appellant owned a life estate in the land? His contention, it seems, was that the instrument was a deed, and as such operated to pass to him at the date of its execution a right thereafterwards to use and occupy the land until the death of L. C. and S.E. Powell, when it operated to vest in him, in addition to the right to possess and use the land, the title to a life estate therein. The stipulation in the instrument that it should not take effect until the death of both L. C. Powell and S.E. Powell, and the reservation by them therein of the title to the land during their lives, appellant argues should be construed as having no other effect than to make them trustees for him of the legal title during their lives. The contention of appellee was that the instrument was a will, and not a deed; and, if a deed, that it did not operate to pass to appellant an estate or interest of any kind in the land until after the death of both L. C. Powell and S.E. Powell. We agree that, if the instrument should be construed to be a deed, the estate it conveyed was not to commence until the death of both L. C. Powell and S.E. Powell; and that, as the latter was alive at the date of the trial, appellant never by virtue of the instrument owned an estate or interest in the land to which a homestead right could have attached. It therefore is unnecessary to determine whether the instrument should be construed to be a will or a deed; for, whether it should be construed to be the one or the other, it could not be held to furnish a basis for his claim that the land was appellant's homestead. If the instrument should be construed to be testamentary, it never operated as a will, because it was not executed with the formalities with which such instruments were required to be executed; and, moreover, had it been so executed, the estate in the land it might be held to devise would not by virtue of it vest until the death of S.E. Powell, and she was still alive. Construing the instrument as a deed, and assuming that the testimony was such as to demand a finding that it had been so delivered as to take effect as such, we think, as indicated above, it sufficiently appears from the language used that the intent of the grantors was to convey an estate to commence at the date of the death of the survivor of them, and not before that time. In the sentence
concluding the instrument the makers thereof expressly declared that to be their intent. But, it is claimed language used by them in other portions of the instrument indicated a contrary intent: That the words "grant, convey," etc., to appellant, "to have and to hold" the land "for and during his natural life," indicated an intent to then vest in him a life estate in the land. Considered apart from the express declaration following, that the design and intent of the grantors was that the instrument should not operate as a conveyance until both of them were dead, and that they reserved the title to the premises during their lives, such would be the effect of the language. But when considered, as it should be, in connection with that declaration, we do not think the language in question renders the meaning of the grantors ambiguous. Looking to the entire instrument, we think it is clear that the intent of the grantors was to reserve in themselves while they both were alive, and in the survivor of them while living, the title to the land, and to pass to appellant an estate for life, which should not commence until the death of the survivor of them.
The judgment is affirmed.