Brothers v. Heirs of Moody

• Decision Date: 29 June 1883
• Docket Number: Case No. 4890.
• Citation: 60 Tex. 96
• Parties: SANGER BROS. ET AL. v. HEIRS OF MRS. P. A. MOODY.
• Court: Texas Supreme Court

60 Tex. 96

SANGER BROS. ET AL.

v.HEIRS OF MRS. P. A. MOODY.

Case No. 4890.

Supreme Court of Texas.

Jun. 29, 1883.

APPEAL from Navarro. Tried below before the Hon. John H. Rice, special judge.

The opinion states the case sufficiently to understand the principles announced and the facts to which they apply.Sawnie Robertson, for appellants.

Cloft & Blanding, also for appellants.

Read & Read, for appellees.

STAYTON, ASSOCIATE JUSTICE.

That the land in controversy was community property owned by Louis Moody and his wife at the time of the death of the latter in 1863 is not questioned; nor can it be denied that at the time of the sale of the land, made by Louis Moody to N. A. Birge, through whom the appellants claim by regular chain of transfer, there existed at least one community debt amounting to between four and five thousand dollars. The record renders it highly probable that a much larger community indebtedness existed.

It is further admitted that all of the appellants were purchasers of the land for valuable consideration, paid without actual notice of any adverse title.

It appears that at the time of the death of Mrs. Moody the community estate was large, consisting chiefly of slaves and lands. Of the lands, there seems to have been eight or ten thousand acres; but it does not appear what disposition has been made of the same, except that the tract in controversy was sold to Birge, and two other small tracts, possibly, it not appearing whether they were of the community estate or not, were sold by Moody in 1868, to meet attorney's fees in bankrupt proceedings. The only testimony bearing upon the question as to what property the children of Mrs. Moody have received from the community estate or from Louis Moody is found in the evidence of W. R. Moody, who testified “that his father never gave his children any property since the death of their mother that witness knows of.”

Soon after the sale of the land in controversy by Louis Moody to Birge, the former voluntarily instituted proceedings in bankruptcy, and in November, 1869, received his discharge.

The papers in the bankrupt proceedings were destroyed by fire, and hence copies of the schedules, showing the assets and liabilities and receipts and disbursements from the bankrupt estate, could not be obtained; and the court excluded so much of the evidence of one of the attorneys who represented Moody in the bankrupt proceeding, as tended to show what property was returned by him as part of his estate, receipts from the sale thereof and disposition made of the proceeds.

The testimony thus excluded tended to show that Moody reported an indebtedness of $20,000 or more, consisting of debts incurred from 1859 forward, and that his assets consisted of notes and accounts and some tracts of land; and that from the assets, money sufficient to pay the costs of the proceedings in the bankruptcy court was not realized, but that the same were paid by Louis Moody, and amounted to about $175.

The record shows that Louis Moody received from Birge for the land in controversy a wagon and some mules; but the deed recited a consideration of $320. It does not appear what the actual value of the land was at the time it was sold to Birge; nor does it appear when any of the children of Mrs. Moody became of age, except W. R. Moody, who was about ten years of age at the time the land was sold to Birge.

The cause was tried without a jury and judgment was rendered in favor of the plaintiffs for one-half of the land, and partition directed to be so made as to give to the appellants, who had made valuable improvements on the land, the land covered by their improvements.

It is claimed that as community indebtedness was shown to exist at the time the land was sold by Louis Moody to Birge, the sale should be held valid.

Under the repeated decisions of this court it must be held as conclusively settled, that the survivor of the marital relation, without administration upon the estate of the deceased member in any of the modes expressly provided by statute, has power as survivor to sell the community property for the purpose of paying debts which are a charge upon it, and by law such property is charged with the payment of debts contracted during the marriage. Pasch. Dig., 4646.

It has been properly held that the act of 1856 did not withdraw such power from the survivor; but that the act was intended to enlarge the powers of the survivor. Wenar v. Stenzel, 48 Tex., 489;Dawson v. Holt, 44 Tex., 178;Lumpkin v. Murrell, 46 Tex., 58.

The act itself seems to recognize in the survivor such a power, and that its exercise will not be disturbed upon failure to comply with the act, unless upon complaint by some one having an interest in the estate. Pasch. Dig., 4649, 4650.

And it would seem that, when those interested in an estate interpose no objection to the management and control of a community estate by the survivor without qualification under the statute, that purchasers from such survivor, if there be community debts bearing a reasonable proportion to the value of the property sold by a survivor, ought not to be disturbed in their titles acquired in good faith; for, in the absence of such interposition, purchasers may well believe that those interested in the estate are content that the survivor shall exercise the powers which he possesses to sell property to raise means with which to discharge debts which are a charge upon such property, and for which the survivor is liable personally, without reference to whether there be community property or not, and without the satisfaction of which heirs, as against the survivor, have no right, either legal or equitable, to take and hold any part of the common property.

In a number of cases it has been said that if community debts exist, the power in the survivor to sell exists. In the case of Wenar v. Stenzel, 48 Tex., 490, the court was asked to instruct the jury as follows: “If you believe from the evidence that such debts (community debts) did exist, and that in order to pay such debts, J. C. Stenzel sold, in good faith, the lot to pay the same, or to reimburse himself after he had paid them, then the title to the purchaser would be good and valid.” No equivalent charge having been given, this court in effect held that the refusal to give the charge was error. In that case property estimated to be worth $14,000 had been sold by the survivor, and there was proof of a community...