¶1On Motion for Rehearing.
¶2On more mature consideration, we conclude that the evidence as to the Farring-tons occupying the mortgaged property at the time of the execution of the deed óf trust is not undisputed, as stated in our original opinion. Dave Mclntire testified that the Farrington home was locked up from March to October, 1930, and that he lived on the place and cared for the yard. He looked in through the windows and saw no furniture in the house. O. C. Matthews testified that about this time he was in the *191house and went all through it and saw no furniture. In view of this and other testimony, we were in error in holding that-the testimony as to occupancy was undisputed.
¶3This requires a consideration of other questions raised by appellants.
¶4We overrule appellants’ contention that the trial court should have submitted certain special issues inquiring of the jury whether or not the Farringtons made representations to W. E. Fowler to the effect that the mortgaged premises were not occupied by them as a home. This matter was not pleaded, and therefore the court properly refused to submit it to the jury.
¶5We sustain appellants’ contention that the jury’s answer to special issue No. 2 is contrary to the evidence. By their answer to this issue the jury found that the Farringtons did not represent to Joseph Wearden, as agent for Mrs. Le Master, that they were not using and occupying the mortgaged property as a homestead. The deed of trust signed and acknowledged by the Farringtons contained the following provision : “We each expressly warrant that we do not live in the real estate therein conveyed, that the same is no part of our homestead and it is not used by us for any homestead purpose whatsoever, and we do each hereby reaffirm our homestead designation datéd March 7, 1930, duly recorded in Vol. 60, page 601, of the Deed Records of Go-liad County, Texas.”
¶6In the face of this provision, the Farring-tons will not be heard to say that they did not represent that the mortgaged property was not their homestead. Skiles v. Shropshire, 124 Tex. 462, 77 S.W.(2d) 872; Alexander v. Wilson, 124 Tex. 392, 77 S.W. (2d) 873; Carstens v. Landrum (Tex.Com.App.) 17 S.W.(2d) 803; Purdy v. Grove (Tex.Civ.App.) 35 S.W.(2d) 1078; Rose v. Turner (Tex.Civ.App.) 16 S.W.(2d) 433, 434; First Texas Joint Stock Land Bank v. Chapman (Tex.Civ.App.) 48 S.W.(2d) 651.
¶7The jury answered issues 3 and 4, though they were instructed not to answer these issues if they answered issue No. 2 “No.” By their answers to issues 3 and 4 the jury found that Wearden did not believe and rely upon the representations made by the Farringtons in making the loan. The jury having found that no representations were made, their answers to issues 3 and 4 are meaningless.
¶8We sustain appellants’ contention that Mrs. Farrington should not have been permitted to testify that she did not read the deed of trust, which she admitted she signed and acknowledged before a notary public. Scottish-American Mortgage Co. v. Scripture (Tex.Civ.App.) 40 S.W. 210; Mc Gaughey v. American Nat. Bank, 41 Tex.Civ.App. 191, 92 S.W. 1003; Bernstein v. Hibbs (Tex.Civ.App.) 284 S.W. 234.
¶9Accordingly, appellants’ motion for a rehearing will be granted, our judgment heretofore entered affirming this cause will be set aside, the judgment below will be reversed and the cause remanded.
¶10Reversed and remanded.