The opinion
On Motion for Rehearing.
The stipulation or agreement as' to common source of title has no more force or significance as to title than pursuing the method pointed out by statute. Both abrogate the necessity of proving title down to the common source. Here the common source of title was in R. M. Minter, but that did not prevent the proof to establish the fact that he was holding it in trust for his wife. A holding such as appellant contends for would be to cut the wife from any proof to establish her estate because the deed was erroneously made in his name and did not show its trust nature. No such effect can be given to the common source of title, whether that fact be made to appear by agreement or otherwise. The case of Sullivan v. Fant, 51 Tex. Civ. App. 6 , 110 S. W. 507 , clearly supports our opinion in this case. In other words, the common source of title shows the record title in the name of R. M. Minter, and the facts show it to be held in trust. It does not follow from that fact that the true owner -may not show for whose benefit the title was held. We are unwilling to adopt appellant’s theory .which would deprive the appellees from explaining the true state of facts and real .ownership and the trust relation. Sullivan v. Fant, supra; Burns v. Goff, 79 Tex. 236 , 14 S. W. 1009 ; Davidson v. Chandler, 27 Tex. Civ. App. 418 , 65 S. W. 1080 ; Mead v. Randolph, 8 Tex. 191 ; McClenny v. Floyd, 10 Tex. 159 ; Gibbs v. Penny, 43 Tex. 560 .
It must be borne in mind that, whatever contention appellant makes in regard to the effect of the agreed common source of title, and regardless of what is expressed in the face of the deed- from Minter to his wife, it could make no difference to appellant that it was the wife’s séparate estate under the facts, and could not be and ought not to be subjected to her husband’s debts. He could convey it to her in any form- he chose, because appellant’s rights were not in the least interfered with, because it, as the husband’s creditor, could not subject the wife’s property to its debt.
We cannot see why the appellant should be concerned by the use of the words “love and affection” instead of setting out the real consideration, for, if the estate was her separate property, it could not he reached by her husband’s creditor; but, if the proof showed it was the husband’s property and not her separate property, it could and ought to be reached.
Our holding is very plain that we do not believe the trial court erred in holding that the proof showed thát the property was her own separate estate, and that the common source of title could not stand between her and the true facts. Any other holding on the .question would not beN administering .justice or the law.
*284 We have carefully considered the motion for rehearing, and, finding nothing new therein, the motion is overruled.