¶1The facts alleged in Miller’s supplemental petition were sufficient to estop R. H. Ranney, or any one claiming under or in privity of estate with him, from denying, as against Miller, the validity of Livingston’s title or of the powers of attorney from Livingston to R. H. Ranney.
¶22. Mrs. Ranney’s community interest in the lots was held in privity of estate with her husband’s community interest, and the title of the community being controlled by her husband, she also was estopped in like manner with her husband, in so far. as her claim was of a mere community interest. The power of the husband to bind the community estate by estoppel, is certainly not less than that of a partner to estop his firm. (Griswold v. Haven, 25 N. Y., 595.)
¶33. The title to the lots was never in the community, but the extent of the community interest was at most a mere equity or resulting trust. By the establishment of the homestead on the lots, the community acquired no new or better title thereto. The equitable rights of the community were still subject to the superior legal or equitable rights of others. The homestead right being attached to a mere equity, was dependent thereon. The fraudulent acts of the husband might be such as to defeat the .equitable interest of the community, and thereby to defeat the imperfect or dependent homestead right. The case differs widely from one where *270the homestead is fixed on land to which there is a legal title, as in Eckhardt v. Schlecht, 29 Tex., 129. It is more analogous to the case of a homestead incumbered by liens and still within the husband’s control.
¶44. These principles are a sufficient answer to the propositions of appellant, unless, as claimed in several of the assignments of error, he is entitled to a reversal of the judgment because the court refused to strike out the plaintiff’s supplemental petition setting up the estoppel and overruled the exceptions of defendant thereto. Our opinion is, that the affidavit of defendant, impeaching as forgeries the powers of attorney to B. H. Banney, sufficiently indicated the nature of the defense to make the allegations of estoppel appropriate, and, further, that the privity of estate between Mrs. Banney and B. II. Banney, her husband, appeared sufficiently from the averments of the supplemental petition. But even if this were not so, the amended answer of defendant showed that Mrs. Banney claimed through the community, and therefore in privity of estate. After that answer, it is not perceived how she can complain of the rulings of the court on the pleadings.
¶5Indeed, it is by no means clear that, if the case had gone to trial on the pleadings as they were before the supplemental petition, the plaintiff might not have introduced his evidence of estoppel for the purpose of making out his case.
¶6The judgment is affirmed.
¶7Affirmed.