¶1 (concurring).
¶2 Findings 5 and 6 establish the homestead character of the property on May 16, 1923, and November 26, 1925. The lien evidenced by the deeds of trust of those dates ivas therefore invalid, and Mrs. McWilliams on that account had a good defense to the foreclosure cross-action of Adoue in the tax suit. She was therefore a necessary party defendant to the cross-action. Jergens v. Schiele, 61 Tex. 255. Not being a party to the foreclosure, she is not bound thereby. Odum v. Menafee, 11 Tex. Civ. App. 119, 33 S. W. 129. The court below based its judgment upon the view that the foreclosure of the deed of trust upon the cross-action of Adoue in the tax suit was valid. In that ruling, in so far as concerns the homestead right of Mrs. McWilliams, I am of the opinion the trial court erred.
¶3 Appellee presents a cross-assignment of error questioning the sufficiency of the evidence to support findings 5 and 6, but he is not in a position to raise that question, for he did not do so in the lower court. It is the settled rule of practice: When a cause is tried by jury, whether upon a general charge or special issues, all questions relating to the sufficiency of the evidence to support the verdict must be- raised in a motion for new trial in the court below so as to give that court an opportunity to correct any error thus disclosed.” Phillips Petroleum Co. v. Booles (Tex. Com. App.) 276 S. W. 667, 668, and other cases cited in 3 Tex. Jur. 254, note 18.
¶4 The record discloses no attack by appellee in the court below upon the sufficiency of the evidence to support the findings upon the homestead issue. On the contrary, the recitals in the judgment disclose that appellee “filed and presented to the Court his motion-for a judgment based upon the findings of the jury and- undisputed testimony,” and that such motion was “in all things granted.”
¶5 For the reasons stated I concur in the disposition made of this appeal.