¶1J. J. Beeves and wife executed a deed of trust to F. M. Bogers, to secure the appellants harmless on two promissory notes due A. H. Shepard, for the aggregate sum of eighteen hundred dollars, which notes were indorsed by the appellants.
¶2The deed of trust was given for a lot and improvements in the town of Sulphur Springs. Beeves lived upon the property, and carried on the business of a druggist. He died insolvent in 1863, and his wife died in 1866. The appellees are the children of J. J. Beeves and wife. J. J. Beeves, Jr., is about thirty years of age, and does not reside upon the property. Mary *85married Barrett, and Laura married Mathews. All the defendants were over twenty-one years of age at the commencement of the suit. The appellants have paid the notes to Shepard. Upon this state of facts the appellants are entitled to have the property sold, and to be repaid the money, principal and the interest, which they have paid on the Shepard notes.
¶3If the children and heirs take this property on the death of their parents, they must take it subject to the incumbrance. They cannot succeed to the homestead right of their parents, unless they had remained together as a family and occupied the property as a homestead.
¶4It is not necessary that we should here decide whether the deed of trust would override the homestead right of a family of minor children, remaining together as a family, and occupying the property; or of a surviving widow, the head of a family. When it shall become necessary that this troublesome question should be decided by this court, upon a fair statement of facts we will endeavor to give its solution.
¶5The judgment of the District Court is reversed and the cause remanded.
¶6Reversed and remanded.