Clemmons v. McDowell
| Decision Date | 23 January 1929 |
| Docket Number | (No. 978-5121.) |
| Parties | CLEMMONS et al. v. McDOWELL et al. |
| Court | Texas Supreme Court |
R. H. Templeton, of Wellington, and Donald & Donald, of Bowie, for plaintiffs in error.
Reynolds, Hill & Engledow, of Shamrock, and Carrigan, Britain, Morgan & King, of Wichita Falls, for defendants in error.
Mary Louise Clemmons, joined by her husband, brought this suit against D. D. McDowell and the Magnolia Petroleum Company to recover the title to two tracts of land situated in Wheeler county, Tex. Defendants answered by pleas of not guilty and other pleas not necessary to set forth.
The case was tried to a jury. At the conclusion of the evidence, both parties moved for a peremptory instruction. Plaintiffs' motion was overruled, and defendants' motion sustained, and verdict was accordingly returned and judgment entered thereon for the defendants. This judgment was affirmed by the Court of Civil Appeals.
The property involved was acquired by W. V. Bailey on October 25, 1902, and constituted the community property of himself and wife, Alma Atkins Bailey. Alma Atkins Bailey died intestate in Montague county, Tex., on February 12, 1903, leaving surviving her W. V. Bailey, her husband, and Mary Louise Bailey, now Mary Louise Clemmons, plaintiff in error, as her only heirs. On the 14th day of March, 1903, W. V. Bailey conveyed the property in controversy by warranty deed to Wade Atkins for a recited consideration of $1,200 cash and the assumption by the grantee of five vendor's lien notes existing against the land bearing date October 25, 1902, each being for the sum of $720, and being due 1, 2, 3, 4, and 5 years after date. On the 21st day of December, 1908, Wade Atkins and wife conveyed the land for a valuable consideration to Mike Ditto, J. F. Yates, and Ed R. Wallace. On September 10, 1910, the grantees in the above deed reconveyed the land to Wade Atkins. On the 15th day of January, 1915, Wade Atkins, for himself and as the duly qualified survivor of the community estate of himself and deceased wife, conveyed the property by warranty deed to Horace G. Young, who executed an oil lease to the defendant in error Magnolia Petroleum Company on the 21st day of April, 1922. Subsequently Young conveyed the land by warranty deed to defendant in error D. D. McDowell.
The rule is too well settled to require the citation of authorities that the surviving husband may sell community property to pay community debts. It is undisputed that at the time Bailey conveyed the land to Atkins there existed a community debt of $3,600, which was a lien on the property. As a part of the consideration, Atkins assumed this indebtedness, and, according to the findings of the Court of Civil Appeals, some five years later paid the same in full, and a release was executed by the holder of the notes.
On the death of Alma A. Bailey, her interest in this property descended and vested in Mary Louise Bailey (now Mary Louise Clemmons). The vesting of such title, however was subject to the indebtedness against it. If the holder of this indebtedness had sued to foreclose his lien and acquired title under foreclosure, even though the surviving heir was not made a party, the sale would have been effectual to vest in the purchaser title to the entire property. Stramler v. Coe, 15 Tex. 211; Claiborne v. Tanner's Heirs, 18 Tex. 68; Primm v. Barton, 18 Tex. 206; Soye v. McCallister, 18 Tex. 80, 67 Am. Dec. 689; Higgins v. Johnson's Heirs, 20 Tex. 389, 70 Am. Dec. 394; Carter and Rust v. Conner, 60 Tex. 52.
If an involuntary sale of the property to satisfy the indebtedness thereon is sufficient to divest the heir of her interest in the property, although not a party to the proceeding, it follows that a voluntary sale by the survivor which operates to discharge the...
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Fidelity Union Ins. Co. v. Hutchins
...by virtue of his powers as the surviving partner of the marital union. Crawford v. Gibson (Tex.Civ. App.) 203 S.W. 375; Clemmons v. McDowell (Tex.Com.App.) 12 S.W.2d 955; Jones v. Harris (Tex.Civ.App.) 139 S.W. 69. But when his rights and powers be tested by the rules relating to community ......
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Williams v. Tooke, 5180.
...legally sufficient without the joinder of the minor children to warrant the entry of the judgment in cause No. 2985. Clemmons v. McDowell, Tex.Com.App., 12 S.W. 2d 955, and cases there cited; Henry v. McNew, 29 Tex.Civ.App. 288, 69 S.W. 213, writ refused; R.C.S. art. 3678. In Stone v. Jacks......
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Turner v. Sawyer
...that it was immaterial whether the surviving husband signed the deed as community survivor or by his name alone. In Clemmons v. McDowell, Tex.Com.App., 12 S.W.2d 955, it was held that the surviving husband's sale of community property, there being a community debt, vested the title of the h......
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