Statement of the case. At the time of her death in 1862 Mrs. Kirchberg was in possession of lots 7 and 8, and apparently either her husband or she had been continuously and notoriously so since the summer of 1852, when the kitchen was built on lot 7. The bill alleged that by the laws of Texas the husband could not convey any part of the homestead without the wife's assent; that the assent of the complainant, the wife of Kirchberg, had not been given to his conveyance in November, 1851, of the lots 7 and 8; that the homestead was composed of all three lots 6, 7, and 8 alike; that previous to the purchase of lots 7 and 8, the said Gustavus and Catherine Kirchberg had no kitchen or other tenement upon lot 6 or elsewhere, excepting their dwelling at the extreme rear edge of lot 6 as aforesaid; and that the purchase and acquisition of lots 7 and 8 were made with the intention and for the express purpose of designating and using them as parts of the homestead. The bill further averred day of That "down to the death of the said Catherine, on or about the 1862," her husband or herself from the summer of 1852 had open, notorious, and continued adverse possession of lots 7 and 8: That by the deeds of trust and the facts connected therewith, it appeared that Wahrenberger for many years after the making of the absolute deed to him, and notwithstanding it, fully recognized the absolute right and title of the husband and wife to those two lots, and dealt with them about the lots as owners, receiving for his benefit the deeds executed to Costa by them for his benefit; and that he was, therefore, estopped from setting up title under the deed of November, 1851, absolute on its face. But the bill nowhere charged that the deed was a mortgage, nor offered to redeem as if it were, nor alleged that it had as a mortgage been paid. The answer declared ignorance of the intention or purpose with which the purchase and acquisition of lots 7 and 8 had been made; asserted on belief and information that part of the purchase-money for them was paid by Wahren Argument for the party asserting a homestead. berger, though the entry of purchase was in Kirchberg 1 name alone; asserted the bona fides and legal efficacy from it date in November, 1851, of the deed of that date from Kirch berg to Wahrenberger conveying them to the latter, and of the mesne conveyances from Wahrenberger to the defendant, denied that either lot 7 or lot 8 was ever really part of the homestead; denied that lot 7 was ever even used as part of the homestead till 1852, after the making of the deed to Wahrenberger; denied that lot 8 was ever even used as part of the homestead at all. Admitted the death of Mrs. Kirchberg "on the day of A.D. 1862, intestate;" did not admit the heirship of the complainants, and finally denied the effect of the trust-deeds asserted by the complainants. As the adverse possession was not admitted to have begun prior to the summer of 1862, its value as a bar (which in Texas is ten years), depended, of course, on the fact whether Mrs. Kirchberg, who, it was admitted, died "on the day of A.D. 1862," died prior to the summer of that year. There was no specific evidence to that point. However, there were several complainants, and it was, of course, Decessary to prove their heirship to Mrs. Kirchberg at the time of her death. Depositions of different parties were taken to prove the heirship of the complainants; this being one of the complainants' interrogatories: "If the wife of Gustavus Kirchberg had in the spring of 1862 any father, mother, or brothers and sisters, or descendants of deceased brothers or sisters, state fully who all such kindred were, and show the degree of relationship between them and her. State also the residence of each of such kindred." And the heirship of the complainants in the spring of 1862 seemed to be established. The court below dismissed the bill, and the complainants brought the case here. Mr. G. W. Paschall, for the appellants, enforcing the points of "the homestead," adverse possession, &c., made in the bill and already stated, argued in addition that plainly the Opinion of the court. deed of November, 1851, was but a mortgage; that obvi ously Kirchberg had owed money to Wahrenberger; that the deed of 1851 was given to secure this money; that the possession taken by the husband and wife of the lots 7 and 8 in 1852, and their building a kitchen and other houses on them and keeping possession, indicated this, and that it was made undeniable by Wahrenberger's accepting two mortgages at different times on the lot, subsequently to the deed of 1851, since a mortgage given to him on his own property would be senseless; and that this was what the bill meant, in asserting that the defendants were estopped to set up the deed. Messrs. John Hancock and C. S. West, contra, argued that no family could acquire a homestead by building on lots which belonged to other persons; and insisted upon the fact that the deed of November, 1851, was an absolute deed; that the bill did not charge it to be a mortgage, and made neither allegation of payment nor offer to redeem; that if it were in fact a mortgage Newman was apparently a bond fide purchaser for value of a title regular on its face, and there absolute; and that finally, under the laws of Texas, the plaintiff was concluded by the judgment in the action at law, of trespass to try title. The CHIEF JUSTICE delivered the opinion of the court. The first objection alleged against the deed which the complainants ask to have cancelled is, that it was made for the purpose of conveying a part of the homestead of the Kirchbergs, and, as such, was void because the wife did not join with the husband in its execution. It is admitted that the deed was good, if the lots described in it were not, in fact, a part of the homestead at the time of its execution. It rests upon the complainants, therefore, to prove that they were. To do this it must be made to appear that they were actually used, or manifestly intended to be used as part of the home of the family. This has not been done. The lots were purchased in 1850, but not occu Opinion of the court. pied until 1852. Then a small building was erected upon one of them, and it was thereafter occupied in connection with the family residence. This was after the deed was made, and, of course, cannot control its operation. Mrs. Kirchberg, in a letter written to her sister in Pennsylvania, in June, 1850, says, "we have a lot on Main Street, in Austin, and will buy the adjoining one as a garden," but there is no proof that the intention of connecting this adjoining lot with the home was in any manner manifested in Austin until long after the deed in question was executed and delivered. A secret intention of the seller, not made known, cannot affect a purchaser. Unless the purchaser knew, or from the circumstances ought to have known, that the lots were a part of the homestead, he had the right to treat with and purchase from the husband without the concurrence of his wife. It is next alleged that the Kirchbergs occupied the premises adversely to the grantee for more than ten years after the execution of the deed, and that therefore the title under it has failed. The burden of proving this allegation also rests upon the complainants. It is shown that the occupation of the Kirchbergs was continuous, and probably adverse, from the time of the building of the kitchen upon lot 7 until the death of Mrs. Kirchberg. The kitchen was built in the summer of 1852, and so far as appears from the testimony, the adverse occupation did not commence until then. To create the bar it must have continued until the summer of 1862. Mrs. Kirchberg died in that year, but there is nothing to show at what time in the year. It is several times stated in the bill that she died "on the day of, 1862," and the answer, as many times, admits the statement in the same language. No witness gives the exact date, but as several were examined by the complainants to show what relatives Mrs. Kirchberg had living in the spring of 1862, it is fair to presume that was the time of her death. But however this may be, as the complainants have failed to prove that she Statement of the case. did not die before the summer of that year, this part of their case fails. It is next insisted in the bill, but not in the argument, that the defendants are estopped from setting up the deed in question by reason of the trust deeds to Costa, executed afterwards by the Kirchbergs at the request of Wahrenberger, to secure the debt due to him, and that, therefore, it should be cancelled. This is in direct conflict with the uniform current of decisions in this court, commencing with Blight's Lessee v. Rochester, and ending with Merryman v. Bourne.† It is next urged in the argument that the deed was given as a mortgage to secure a debt which has been paid. There is no allegation in the bill to support this claim. The recovery must be had upon the case made by the pleadings or not at all. It is unnecessary to consider the effect, under the laws of Texas, of the judgment in the action of trespass instituted by the complainants to try their title to the property. DECREE AFFIRMED. TEXAS v. CHILES. 1. The purpose of the act of Congress (Revised Statutes, ¿ 858) enacting that "in courts of the United States no witness shall be excluded. in any oivil action, because he is a party to or interested in the issue to be tried, Provided,' &o., was to put the parties to a suit (except those named in a proviso to the enactment) on a footing of equality with other witnesses; that is to say, to make all admissible to testify for themselves, and all compellable to testify for others. 2. An order accordingly made for a subpœna to a defendant in equity, in order that his deposition might be taken for the complainant. THIS was an application for an order that a subpœna issue for John Chiles, the defendant in the case of Texas v. Chiles * 7 Wheaton, 585. † 9 Wallace, 600. |