Carter v. Conner

• Decision Date: 22 June 1883
• Docket Number: Case No. 3519.
• Citation: 60 Tex. 52
• Parties: ELLA CARTER AND ELVIRA RUST v. JOHN H. CONNER ET AL.
• Court: Texas Supreme Court

60 Tex. 52

ELLA CARTER AND ELVIRA RUST

v.JOHN H. CONNER ET AL.

Case No. 3519.

Supreme Court of Texas.

Jun. 22, 1883.

APPEAL from Travis. Tried below before the Hon. E. B. Turner.

Action of trespass to try title, brought by John H. Conner and his children, as the heirs of their deceased mother, Salina A. Conner, for the recovery of about twenty-two lots in the city of Austin, against Ella R. Carter and her guardian, Elvira Rust.

The defendants demurred, pleaded the general issue, and also set up special matters of defense.

During the progress of the cause Elvira Rust intervened in her own right, setting up title in herself to the entire property under certain execution sales, and prayed for judgment in her favor.

The plaintiffs demurred and answered to her petition of intervention.

Verdict, on which the court rendered a judgment for the heirs of Mrs. Conner for one-half of all the lots claimed by the plaintiffs (except four of them), and for $200 damages, and in favor of Elvira Rust, the intervenor, for one-half of all the lots (except four of them), and against Ella Carter, the defendant, for the $200 and part of the costs.

The evidence disclosed that Conner was married to Salina prior to 1862, and that she did not die until 1872. Conner executed a note to Loeb & Co. for $161.89, on December 28, 1866. Suit was brought on this note in the district court of Travis county, and a judgment was obtained on it against Conner for $271 gold, on October 13, 1873. Execution was duly issued and levied on all the lots in suit, and the lots, on April 6, 1875, were sold by the sheriff under this execution and purchased by the intervenor, Elvira Rust, and a sheriff's deed was duly executed to her, under which she, in her pleadings, claimed to be the owner of the lots.

The court charged as follows on this question:

“The intervenor's claim is based on a purchase made by her at sheriff's sale under two executions. The sale was by virtue of the judgment in favor of Loeb, rendered October 13, 1873; but the proof shows that the debt was contracted before the death of Mrs. Conner, and the debt was therefore a debt against the community estate of Conner and wife. The other judgment under which she purchased was against Conner, but was not a debt against the community, and a sale under it would not affect the children's interest. The sheriff levied both these executions on all the lots in controversy, and sold them upon both, making a deed for them to Miss Rust, and applying the proceeds to the extinguishment of both judgments.”

“This sale cut off all title in John H. Conner. It now remains for me to charge you upon the effect of the Loeb judgment, execution, sale and deed thereunder to Miss Rust, as it affects the heirs of Mrs. Conner. At the time the Loeb judgment was rendered against Conner, October 13, 1873, was Mrs. Conner dead? If she was, then I charge you that the title of Mrs. Conner had vested in her heirs, and these lots being community property owned by them at the time of her death, then the one-half interest in the lots passed to her heirs, and the debt not having become a lien on the property at the time of her death, a sale under the Loeb judgment rendered against Conner after the death of his wife could not affect the interest of the heirs, and was, as to their half interest, ineffectual; and if there is no other obstacle to their recovery than this sale, then they are entitled to the one-half interest in the lots (except as to lots 1, 4, 7 and 8 which were bought by D. L. Cross), and to such sum for the rents thereof as their half interest entitles them to under the evidence, from the date of the death of Mrs. Conner.”

The defendant asked the following instruction, which was refused:

“If you believe, from the evidence, that the Loeb judgment was rendered on a community debt of Conner and his deceased wife, Salina, that is, a debt contracted by Conner before her death, then the levy, sale and sheriff's deed made under said judgment divested the plaintiffs of all interest in the property described in the petition.”

Hancock and North, for appellants, cited: Pasch. Dig., art. 4642, and note 4; Jones v. Jones, 15 Tex., 143;Wenar v. Stenzel, 48 Tex., 489;Dawson v. Holt, 44 Tex., 174;Lumpkin v. Murrell, 46 Tex., 51;Tucker v. Brackett, 28 Tex., 336, and 25 Tex. Sup., 199; Burleson v. Burleson, 28 Tex., 383;Allison v. Shilling, 27 Tex., 450;Brewer v. Wall, 23 Tex., 585, and other cases.

D. G. Wooten, also for appellants.

Cullen, Jones & Trigg, for appellees, cited: Pasch. Dig., arts. 4648, 4649, 5494; Green v. Rugely, 23 Tex., 539;Carroll v. Carroll, 20 Tex., 732;Gaut v. Reed, 24 Tex., 56;Thompson v. Cragg, 24 Tex., 582; Pasch. Dig., art. 3795.

WILLIE, CHIEF JUSTICE.

The important question in this case arises upon the refusal of the court below to give the special instruction asked by the counsel of appellants. That instruction was as follows: “If you believe, from the evidence, that the Loeb judgment was rendered on a community debt of Conner and his deceased wife, Salina, that is, a debt contracted by Conner before her death, then the levy, sale and sheriff's deed made under said judgment divested the plaintiffs of all interest in the property described in the petition.”

The suit in which the Loeb judgment was obtained was not commenced until eleven months after the death of Mrs. Conner, and it was in the ordinary form of a suit on a promissory note; it was not charged in the pleading that it was upon a community debt, and the judgment against Conner was in its form the same as if he had been sued in his individual capacity.

An ordinary execution issued upon this judgment, which was levied upon the property claimed by the intervenor, and after advertisement she purchased it at sheriff's sale and received a deed which purported to convey the right, title, claim and interest of J. H. Conner in the property sold.

If these proceedings divested the children of Mrs. Salina Conner of all the community right in the property which their mother held at the time of her death, then the charge should have been given; otherwise it was properly refused.

That the survivor of the marriage may sell, convey, mortgage, or otherwise voluntarily dispose of community property for the purpose of satisfying community debts is well established by the decisions of our state, and is not controverted by the appellees in this case.

But it is contended by them that an involuntary sale of such property, under an execution issuing upon a judgment obtained in a suit upon a community debt commenced subsequent to the death of the wife, in which the children of the deceased wife were not made parties, does not divest the children of such community right. And this more especially where the claim upon which the suit is brought is not charged in the pleadings to be a community debt, and the sale was of the right, title, interest and claim of the defendant in the suit, the survivor in community.

Our court, in determining to what extent the survivor in community may make use of its assets to discharge the community debts, as also the right of creditors to enforce payment of their demands out of such assets, have assimilated the marital relation in many respects to that of an ordinary partnership.

After the dissolution of a partnership by the death of one of the members (if there be two members only), the survivor winds up its business, collects its demands and pays off its debts; and for the latter purpose may make use of its means,--sell, convey, mortgage or otherwise dispose of them.

A creditor of the partnership need not, in enforcing by suit a firm debt, make any one a party to the suit, except the surviving partner. A judgment against him as such carries with it the right to an execution against the partnership property as effectually as would a judgment against the firm before its dissolution by the death of one of its members. The survivor of the conjugal partnership has all the powers of the surviving member of a commercial firm by our decisions, and is bound by all his obligations.

On dissolution of a commercial partnership the survivor keeps possession of everything. He has the legal right to the partnership effects. He is a trustee for all concerned in the partnership,--the heirs of the deceased, the creditors of the firm, and himself. Case v. Abeel, 1 Paige, 398; Parsons on Part., 441.

Suits at law must be brought against the surviving partner alone; and suits to collect debts due to the firm must be brought by him without joining the personal representatives of the deceased partner. Story on Part., 447. In equity such joinders are not prohibited.

In suits by and against the marital partnership the same rules thus far obtain; but there are some differences in the mode of pursuing remedies both for and against the partnership which have their origin in the differences that exist between the two classes of partnership, and which seem now to be pretty well recognized by our courts.

The business of the marital partnership is always conducted by the husband; all its affairs are in his name. With occasional exceptions he makes its contracts, incurs its debts, signs its notes to others,...