Bell v. Schwarz

• Citation: 56 Tex. 353
• Decision Date: 07 March 1882
• Docket Number: Case No. 455.
• Parties: JOHN G. BELL ET AL. v. S. SCHWARZ.
• Court: Supreme Court of Texas

56 Tex. 353

JOHN G. BELL ET AL.

v.S. SCHWARZ.

Case No. 455.

Supreme Court of Texas.

Mar. 7, 1882.

APPEAL from Austin. Tried below before the Hon. Livingston Lindsay.

This was an action of trespass to try title, commenced June 26, 1871. The plaintiffs were John G. Bell, guardian of the minors Daniel and Theodore Cross, and William S. Wright, guardian of the minor Mary Cross. These minors were the children of Lucy and Horace Cross, deceased. Lucy died in September, 1867, and Horace in December, 1869.

The land in dispute consisted of several lots in the town of Hempstead, and were the homestead of Lucy and Horace Cross.

September 1, 1869, the father conveyed this property to appellee by deed with general warranty. He acquired no other homestead. This property was the community property of the husband and wife, and this suit was brought to recover the half interest inherited by the minors from their mother.

March 29, 1872, a trial was had and judgment was rendered for defendant, which on appeal was reversed and the cause remanded. A report of the case will be found in 37 Tex., 572.

In the progress of the cause the minor Mary inter-married with A. J. Fagan, who made himself a party plaintiff. It appears from the record that appellee knew of the condition of the property when he bought; that the price paid for it was $600; that it was worth $1,000 or $1,200--though one witness testified that when it was sold times were hard, money very scarce; that it was doubtful whether the place would have sold for more than appellee paid for it, and that the rental value of the property was from $10 to $15 per month. There was no proof of community debts; but it appears that in the year 1869 Horace Cross sold a stock of cattle for $500 or $600, and that the money was paid, part of it at the time of the sale, part afterwards. Among other defenses set up by appellee was this: that after his purchase of the land, he had at the request of Horace Cross paid certain tuition bills for the benefit of the minor Mary, and some accounts for clothing furnished, these amounting to $60 or $70; that he had at the request of Horace Cross paid two installments of the premium upon a life policy, which Cross had taken out upon his life for the benefit of the minors Daniel and Theodore; that the guardian of these minors had received the money ($2,500) upon that policy after the death of their father; and that thus having been amply provided for by their father, they were estopped from claiming anything in this suit. Appellants objected to the proof of these facts when offered, but the objection was overruled and appellants excepted. The trial was had March 10, 1874. Verdict and judgment for defendant.

Hunt & Holland, for appellant.

Ben T. Harris & Kleberg, for appellee.

DELANY, J. COM. APP.

The assignments of error in this case relate to the admission of evidence over the objections of appellants, of the charge of the court, the refusal of charges asked by appellants, and the overruling of the motion for a new trial. The property had been the homestead of the parents and of the appellants in this cause, and we are to consider: First, whether the surviving father had the legal right to convey to appellee? Second, are the appellants estopped to deny his title?

It has long been settled in this state that the interests of the husband and wife in the community are equal--the husband having the right of control and disposition during the marriage, except in the case of the homestead. Upon the death of the wife her interest passes by operation of law to her heirs, subject to administration and to the right of the husband “to wind up the community affairs.” Veramendi v. Hutchins, 48 Tex., 550, and authorites cited; Johnson v. Harrison, Id., 257 Pasch. Dig., 4642.

These cases speak of the right of the husband to wind up the affairs of the community. This winding up must consist chiefly, if not entirely, in paying the community debts; for the statutes expressly provide that, after the payment of the community debts, one-half of the remainder of the property shall pass to the heirs of the deceased. Their right to their part of the property is a legal right, just as complete as is the father's right to his; just as complete, so far as he is concerned, as if they had derived their title from a stranger. Johnson v. Harrison, supra.

If, then, aside from his right to wind up the community affairs, and aside from these statutory regulations which empower him to sell upon certain conditions--if, in addition to these, he...