c32:

McCORMICK, Circuit Judge,
(dissenting.) I dissent from the deidsion rendered in this case and from the views expressed in the opinion of the court. There is no question raised on this appeal as to Mrs. Walker’s right under the Texas law to the homestead of 200 acres claimed by her, subject only to a vendor’s lien on 1,203 acres, of which said 200 acres is a definite, separate part, specific^ ally described by its metes and bounds. The trial court so found in her favor, and the appellant does not complain of this finding. It is too clearly supported by the admitted facts and familiar Texas law to admit of question. There is, therefore, no place to bring in any declarations made by Kennedy and Walker in- reference to their homestead or the affidavits of said parties and their wives, copied into the court’s statement of this case. There is no question of high equities before us, but a very plain matter of intensely Texas law as to the right of the owner of a rural homestead of 200” acres, situated as this 200-acre homestead is, to have the vendor’s lien, which covers 1,203 acres, first applied to the 1,003 acres excess. There is no room here for learning drawn from Pennsylvania, Massachusetts, or the high court of chancery to determine the relation the right of homestead created by the Texas constitution bears to the common-law right of dower, or the comparative degree of favor the courts administering Texas law should accord the homestead right. For nearly 50 years the people of Texas, by successive and progressive -constitutional provisions, ■ and a constant and swelling course of judicial construction on this most prolific of all topics, have marked, illustrated, enlarged, and strengthened the stakes and lines of her public policy in reference to the protection of the homestead of the family against the devices of money lenders and of other creditors, the improvidence of borrowers, and the refinements of lawyers. So far as the case is before us, there is but one creditor here, and there is no room for the exercise of the power of the court as a court of equity to protect the equities of different creditors or incumbrancers. The owners of the homestead are not mortgagors as to it. They are citizens, in the preservation of whose family home the state asserts a jealous interest; so jealous'that she has deprived them of all power to charge it by a mortgage, or any other device in the nature of a mortgage, with exceptions not involved in this case. The homestead is not charged or chargeable with a vendor’s lien by the head or heads of the family whose home it is. That lien is retained, unless waived, by the vendor, to secure the unpaid purchase price; and giving the evidence of it the form of a mortgage or deed of trust does not create it, or change its essential nature. In the purchase and sale of 1,203 acres of land wholly or partly on credit there is no implied contract that the vendor shall have his lien for the unpaid purchase price of the whole 1,203 acres on that certain 200 acres thereof which the purchaser, being the head of a family, uses as his home, and no subsequent dealings of the parties can have the effect to so charge the homestead 200 acres. It- appears that the amount remaining unpaid is not the whole of the purchase price of this 1,203 acres; that, besides accruing interest, one-fifth of the principal of said purchase price had been paid before the 15th November, 1887, — more than one year before appellant’s first loan to said purchasers. It also-appears that before making any loan on these lands the appellant had the premises fully inspected, and was then and at all times subsequently fully informed as to all the facts touching these lands, the constituents of these families, their place of actual abode, and their pursuits, and then loaned them money on these lands to the extent of nearly S10 per acre. The presumption is strong, therefore, that in addition to having paid one-fifth of the principal of the purchase money of this 1,203 acres of land purchased by them 21st November, 1881,■ — more than seven years before they borrowed any money of complainant, — for less than $5 per acre, these purchasers had during these seven years by their industry or oilier resources greatly improved the market value of these 1,203 acres, or there had been a general advance in the value of such lands in that locality to the benefit of which these purchasers were entitled. On what fact, therefore, or principle of high equity, does, this court decline to “invent new precedents, or stretch the general rules of equity, in order to give the said defendants a homestead for which, by the record, they have not paid, and which, under the law, may be, and ought to be, sold to satisfy a just debt?” What just debt? The amount remaining unpaid of the purchase price of 1,203 acres of land, which the sale of the 1,003'acres, not covered by this homestead, might satisfy, and leave this 200 acres discharged from the vendor’s lien, and not liable for any part of complainant’s debt, however just? Wherefore? Because these heads of the family have given a mortgage or deed of trust on the whole of the 1,203 acres (or on the 1,003 acres, as 'they might very well do) to secure a loan procured after the purchase of their home? By what law? By the Texas law? Or by some more equitable rule, found in ’Massachusetts or elsewhere, which cannot recognize the reasons that support “the cases in some of the western, states,” where the Texas public policy, in reference to the protection of the homestead, has boon fully or partially adopted? Verily, not by the Texas law; for in language as plain as “the way of holiness,” placed above the power of the legislature to change or qualify it, self-acting in the highest, sense, the Texas law says: “No mortgage, trust deed, or other lien on ¡he homestead shall ever be valid, except for the purchase money thereof, * * * whether such mortgage or trust deed or other lien shall have been created by the husband alone or together with his wife.” X submit with the utmost confidence that the supreme court of Texas has set no precedent that will sustain the reasoning of the opinion of the court in this case. With equal confidence I submit that in the case of Pridgen v. Warn, 79 Tex. 588, 15 S. W. Hep. 559, the question we are here called on to decide was not in the mind of either of the parties or in the mind of the counsel of either of the parties, or in the mind of either of the members of that august tribunal of learned, experienced, and distinguished Texas jurists.

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