Good v. Coombs

• Decision Date: 31 October 1866
• Citation: 28 Tex. 34
• Parties: JOHN J. GOOD v. WILLIAM COOMBS ET AL.
• Court: Texas Supreme Court

28 Tex. 34

JOHN J. GOOD

v.WILLIAM COOMBS ET AL.

Supreme Court of Texas.

October, 1866.

The appellant brought suit for the recovery of an interest in a tract of land purchased by him at sheriff's sale, two hundred acres of which he admitted to be the homestead. The defendants and intervenors in their pleadings notified the plaintiff that they relied upon certain deeds, under which they claimed adversely to him. The plaintiff, although thus notified, omitted to allege in his pleadings any invalidity in such deeds by reason of fraud or other cause. But on the trial in the court below, the plaintiff was permitted, without objection, to introduce evidence impeaching the deeds for fraud; notwithstanding which, however, the issue thereon was found against him. This court, in view of the whole of the evidence taken together, and notwithstanding some suspicious circumstances, holds that the preponderance is in favor of the good faith of the deeds, and that the appellant, even if he had properly raised the issue by his pleading, would have had no ground to complain of the judgment of the court below sustaining the deeds, and that he had the less right to complain, inasmuch as he had not made the issue in any mode entitling it to the consideration of the court.

There is no rule of law known to this court, by which the survivor of the conjugal partnership is prohibited from alienating his or her portion of the community estate, provided the alienation is in good faith, and not with intent to defraud creditors or heirs of the deceased partner.

The right of the survivor of the conjugal partnership to make sales of community property would seem to be a necessary consequence of the obligation of such survivor to discharge the debts against the partnership, because it is usually by such means only that those debts can be paid.

One joint tenant or tenant in common cannot convey a distinct portion of the estate by metes and bounds, so as to prejudice his co-tenants. This is not an open question in this court. 17 Tex. 417;22 Tex. 396;24 Tex. 376.

It follows that a judgment creditor of such a tenant, having no greater right than the tenant himself, is not entitled to have a distinct portion of the common estate set apart by metes and bounds for the satisfaction of his judgment.

The plaintiff in his petition asked, in case the land sued for should not be adjudged to him, that a decree be rendered, annulling the levy and sale, and refunding to him the purchase money he had paid. Held, that, inasmuch as the plaintiff in the execution was not a party to the suit, the application for such alternative relief could not be considered.

APPEAL from Dallas. The case was tried before B. WARREN STONE, Esq., a special judge chosen by the parties because of the interest of Hon. NAT. M. BURFORD, the presiding judge.

William Coombs was the head of a large family, consisting of wife and children. Induced by the offers of the empresarios of Peters' colony, he emigrated from Missouri to Texas, and in October, 1843, he settled as a colonist on the six hundred and forty acre tract of land surveyed by the company, and fully described in the pleadings of the parties and the statement of facts. According to the theory of Texas law, this was not a title of pure donation to the husband, but it was onerous and burdensome; and the land and all the fruits of the labor of the conjugal spouses resulted to the benefit of the community. Pas. Dig. arts. 4641, 4642, notes 1048, 1049.

In their new home, William Coombs became a well-to-do man. But he seems to have left some old debts behind him. These followed him, and fell into the hands of a lawyer by the name of Eliot. These notes were seven in number, each for $500. This was a large debt for a poor man in the woods. They were payable to Seymore Stone. They seem all to have been barred by the Texas statute about contracts “grounded in writing,” except two. For this, or some other reason, negotiations were had, which resulted in Coombs executing to Stone four new notes, dated the 31st March, 1849, each for $234, due at one, two, three, and four years. This arrangement with Eliot was subject to the approval of Stone, so that Eliot held both sets of notes, the one or the other set to be surrendered according to Stone's decision; no time to run after the new contract.

Before this decision, Coombs preferred the old large notes to the new small ones; those long over-due, with large interest, to those not yet matured, without interest. At any rate, Coombs went to Corsicana and demanded back his new notes. But Eliot was well satisfied with the less amount, and so, after a time, he returned Coombs his seven old notes.

But after these notes were given, and while they were running to maturity, many changes in the circumstances of William Coombs took place. On the 6th of July, 1847, his good wife, Mrs. Ivy Coombs, died, leaving several children, her husband, and her interest in the community property, incumbered with obligations to pay this community debt to Seymore Stone, if, indeed, the novation of an old debt, contracted in another common-law country, was a community debt.

In October, 1848, the widower, William Coombs, consoled himself by marrying Rachel McDowell, a “young lady,” who demanded “boot” for exchanging her charms for an old man, the father of half a dozen children, and a little embarrassed in fortune. The found lover agreed to pay her $500, but it was objected that this agreement was verbal, and not solemnized by notarial contract, as required by our law. Pas. Dig. art. 4632. The conscientious husband kept his promise, and paid the money after marriage, but he afterwards borrowed it to build a mill on his land, and he returned it from the profits of the mill.

He also, on the 5th of May, 1849, sold all his interest in the land in controversy to his son, Isaac N. Coombs. He only claimed to have sold an undivided half. Isaac N. Coombs, on the 19th of November, 1850, conveyed what he bought to his step-mother, Rachel McDowell Coombs. He said she gave him that same $500 which the lady received as “boot,” and a carriage and some cattle, which her father (McDowell) got for working on the mill.

Just what other considerations moved to these purchases will be told hereafter. On the 5th of November, 1855, Seymore Stone obtained judgment against William Coombs upon his notes; and, under this execution, John J. Good became the purchaser of this same land and mill, by the sale and deed of the sheriff. But now, whatever other complications came in the way, all agreed that the said William Coombs and his family were protected under our liberal constitution to the extent of “two hundred acres in the country,” as his homestead. Pas. Dig. p. 65, sec. 22, note 198. How all these simple facts were worked into a legal wrangle, covering an immense record, the Reporter leaves to his predecessor, Mr. Jackson, to tell.

On the 1st of January, 1858, John J. Good, the appellant, brought this suit against William Coombs and Rachel, his wife. In his petition, the plaintiff alleged, that on the 6th of November, 1855, one Seymore Stone recovered judgment against said William Coombs in the district court of Dallas county for $895.53, besides costs of suit. That an original and an alias execution issued on this judgment, the latter of which, on the 6th of October, 1856, was levied by the sheriff on the southwest quarter of section 17, and the southeast quarter of section 18, all in township 1 south of the first base line, and range 1 east of the first meridian, of the surveys made in Peters' colony, containing three hundred and twenty acres, but reserving therefrom two hundred acres, to include the homestead of William Coombs, the defendant in the execution. That, on the first Tuesday of January, 1857, after legal notice, said land was sold by the sheriff to satisfy said execution, and plaintiff became the purchaser at the sum of $150, in consideration of which the sheriff made and delivered to plaintiff his deed for the land so levied upon and sold. That the said tracts adjoin each other, and the improvements of the said Coombs are on each of them. That plaintiff is entitled by said sale to one hundred and twenty acres out of said tracts, there being that quantity left after deducting the amount to which said Coombs is entitled as his homestead. That plaintiff has requested the said defendants, William and Rachel Coombs, to designate by metes and bounds the portion of said tracts claimed by them as their homestead, so that plaintiff might know the exact locality and metes and bounds of the land to which he is entitled by virtue of his purchase at said sale, but that the defendants neglect and refuse so to do. Wherefore plaintiff prays for partition of said land, setting apart to the defendants their homestead tract of two hundred acres, and to the plaintiff the one hundred and twenty acres to which he is entitled as aforesaid. In conclusion, the plaintiff prays as follows:

“In the event petitioner is mistaken in the relief sought, he prays the court to grant him a judgment and decree annulling, canceling, and setting aside said levy and sale, and the refunding of the purchase money paid by him, together with such other and further relief as, the premises considered, he is entitled to, and he will ever pray,” etc.

The defendants excepted generally and specially; the defendant, William, disclaimed any interest in the land in controversy, and the defendant, Rachel, denied all the allegations of the petition, asserting exclusive title in herself to the whole of the land as her separate property, and denied that any portion of it was ever subject to sale under the execution referred to by the plaintiff.

On the 16th day of July, 1858, several other parties appeared in the character of intervenors. Some of them were the children and heirs of Isaac N. Coombs, a deceased son of the defendant, William Coombs, by his former...