Hart v. Clark

Decision Date25 October 1881
Docket NumberCase No. 2835.
Citation55 Tex. 437
CourtTexas Supreme Court
PartiesMORRISON & HART, EX'RS, v. JOHN D. CLARK ET AL.
OPINION TEXT STARTS HERE

APPEAL from Navarro. Tried below before the Hon. Francis P. Wood.

Suit brought in the district court of Navarro county on March 26, 1873, by the appellants against John D. Clark and Margaret Gilliam.

The petition avers that on February 22, 1871, plaintiffs recovered a judgment in the district court of Montgomery county against Margaret, as surviving wife of William L. Gilliam, and others, for $2,507.94, etc. On the 8th of June, 1871, they recovered in the same court a judgment against the same Margaret for $2,654.80, etc., these judgments to be made and levied of the community property in the hands of said Margaret, of herself and her deceased husband. It was averred that Margaret, with intent to defraud them, sold and conveyed to John D. Clark the lands known as Byrdstone, in Navarro county, which they say was community property at the death of Gilliam, and liable for community debts, and that Clark knew it, but confederated with Margaret to defraud them; that he had knowledge of the existence of the community debts, and of the pendency of the suits in which the judgments were rendered. It was further averred that Gilliam died in Navarro county in 1864, intestate, and that there has been no administration on his estate.

They prayed for judgment that Byrdstone be sold as under execution to satisfy their judgments, etc.

By an amended petition, it was alleged that Margaret made the conveyance of Byrdstone to Clark's wife, and she being dead, her children, who are minors, were made parties.

The defendants demurred generally, and answered denying all charge of fraud, and averring that Francis C. Clark, under whom they claimed, was a purchaser in good faith of the land, and had paid for it, and also the general denial.

The case was submitted to a jury, who returned a verdict for the defendants. Judgment was rendered for them, and this appeal is prosecuted therefrom.

A succinct statement of the material testimony offered upon the trial will show what the real controversy was between the parties. It was shown that Wm. Gilliam and Margaret, husband and wife, emigrated to this country prior to September, 1864. In September, 1864, William died in Navarro county, where he then resided, leaving Margaret, his wife, surviving, and no children. On the 7th of November, 1864, Margaret conveyed to Mrs. Haden certain lands in Navarro county. These lands were the same conveyed to Margaret, to her, and her only sole use and benefit, by Fisher and wife on the 11th of September, 1863. The consideration for this conveyance from Margaret to Mrs. Haden was the conveyance on the same day by Haden and wife to Margaret of the Byrdstone place in Navarro county.

On the 24th of October, 1867, Margaret conveyed the Byrdstone place to Fannie C. Clark for the consideration expressed of $1,000, and Mrs. Gilliam, who was examined for plaintiff, testified she had received payment for it from J. D. Clark in 1867 and 1868, and perhaps some of it in 1869.

The transcript of the judgments in Montgomery county district court were read. The suits there were filed in February, 1866, by Morris and others, executors, against Margaret Gilliam and others, upon a cause of action originating in 1869. The petitioners allege the death of Gilliam in October, 1864, intestate, without children, leaving a large amount of community property, of the value of $50,000, to which Margaret was entitled; that there was no administration on Gilliam's estate; that she had come into possession of the community property, and that she held and claimed other property of the value of $5,000, by gift from her husband, after the cause of action arose. Judgment was prayed for a sale of the community property and that given to her, etc., “mediately or immediately by Wm. Gilliam.”

The judgments were against Margaret Gilliam, surviving spouse of William Gilliam, deceased, for the amounts as stated heretofore, and that execution issue against her. to be levied out of the community property of herself and the said William at the time of his death, and that has since or may hereafter come to her hands. No personal judgment was rendered against her, nor is any mention made in the decree of the property given to her, nor any specific property described.

The consideration paid for the lands conveyed by Fisher and wife to Margaret's sole and separate use was community property of Margaret and William.

Mrs. Gilliam, testifying for the plaintiff, said the Byrdstone land was hers; that Mr. Gilliam traded for her the Fisher lands to Haden and wife for it. In September, 1863, her husband owned a large amount of property, ten slaves, fifteen head of horses, hogs, cows and calves, several thousand dollars' worth of cash notes, and about $35,000 in Confederate money, which afterwards became worthless, and the Richland farm of three hundred and seventy-three acres.

Mrs. Haden, also testifying for the plaintiff, said, speaking of the purchase of Byrdstone: “Gilliam came with his wife as advisor, and assisted her in the trade for Byrdstone, stating at the same time that he came merely to advise her in the trade, and that he had no title or interest in the land traded.” The trade was made before Gilliam's death, but the conveyances were executed afterwards.

Davis testified to a conversation with Clark in 1868 or 1869, in which he notified Clark not to pay any more on the purchase money of Byrdstone; that he would hold it liable, if he could, for the payment of the judgments. Clark then said he had paid $500.

Clark himself testified that he had paid for the place; that he had a conversation with Davis about the suits, but thinks it was in 1869 or 1870. He thought at the time his purchase money was but half paid, but on reference to his books afterwards, he found that $800 had been paid, part money and part goods. Until the conversation with Davis he did not know of the community indebtedness of Gilliam, or that Mrs. Gilliam was trying to defraud the creditors.

The defendants read a deed from Haden for Byrdstone to Fannie Clark, dated September, 1869.

It appears that Margaret Gilliam married one Carswell in 1866, but how long that coverture lasted does not anywhere appear. Mrs. Gilliam in 1867 appears to have been living with her sister. In 1867 and 1868 she rented the homestead of Gilliam and lived with her sister. In 1868 she sold the homestead. Carswell is not mentioned or made party in any of the suits against Margaret. The record is silent as to whether he is living or dead, or abandoned his wife. She appears to have acted at all times after the death of Gilliam as a feme sole.

Wm. Croft, for appellants.

I. Though the deed to the property was taken in the name of Mrs. Gilliam, it being acquired during coverture it was prime facie community property. Tucker v. Case, 39 Tex., 102; Johnson v. Burford, Id., 240; Parker v. Chance, 11 Tex., 518; Pasch. Dig., art. 6870, and cases cited.

II. This principle also applies to the deed taken by Clark in the name of his wife. Byrdstone became the community property of Clark and wife by virtue of the deed to his wife, and even if it had become her separate property, the property was affected by the knowledge of Clark, who in that case acted as his agent.

N. H. & J. R. Davis, also for appellants.

I. By a sale of her community interest (half if children, all if childless), the surviving wife could not deprive the probate court of jurisdiction, nor could she defeat the rights of creditors. Her vendee would take the estate subject to those rights and burdened with those charges. Mitchell v. Dewitt, 20 Tex., 299. On the death of W. L. Gilliam his survivor could not defeat the right of creditors by selling to Clark. 20 Tex., 299.

II. The surviving wife … may be sued for the debts against the community, but as she is proceeded against in a fiduciary capacity, the action being more in the nature of a proceeding in rem than in personam, the judgment should be that the amount be made of community estate in her hands. Tucker v. Brackette, 18 Tex., 339. And these judgments may be, for executors, the most usual and customary remedy. Id.; also 25 Tex. Sup., 196; 36 Tex., 22;34 Tex., 478;28 Tex., 49;13 Tex., 285.

III. That “Byrdstone” is community property, we refer to the evidence and to the following authorities: Pasch. Dig., art. 4642, note 1049; 30 Tex., 178-9;16 Tex., 323;11 Tex., 518;31 Tex., 405;27 Tex., 459;26 Tex., 459;26 Tex., 329;20 Tex., 394. A statute of 1848 (Pasch. Dig., 1373, § 122) enacts that, whenever a person dies intestate, all of his estate shall vest immediately in his heirs at law; but, with the exception of such as may be exempted by law from the payments of debts, shall be liable and subject in their hands to the payment of the debts of the intestate. That the heirs must pay the debts of the ancestor out of the property inherited from him, if not paid by the administrator, is not now an open question.

Winkler & Morris, for appellees.

QUINAN, J. COM. APP.

The case presents as the important question involved, whether Byrdstone was the community property of William Gilliam and Margaret, his wife, or whether it was her separate property at the death of William.

The conveyance of the property to Margaret after his death, prima facie...

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7 cases
  • Vaugilan v. Hollingsworth
    • United States
    • Idaho Supreme Court
    • August 2, 1922
    ... ... intention. (McCutchen v. Purinton, 84 Tex. 603, 19 ... S.W. 710; Baker v. Baker, 55 Tex. 577; Morrison ... & Hart v. Clark, 55 Tex. 437; Hatchett v ... Conner, 30 Tex. 104; Swain v. Duane, 48 Cal ... 358; Sanchez v. Grace Methodist Episcopal Church ... 114 ... ...
  • Henry S. Miller Co. v. Evans
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    ...of a gift, and that there is no presumption of community property in this case, is demonstrated by the opinion in Morrison & Hart, Ex'rs v. Clark, 55 Tex. 437, 443 (1881), as 'It is unquestionably true that a conveyance of land made, whether to the husband or wife, or both, is presumed to b......
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    • Texas Supreme Court
    • June 2, 1920
    ...Lansford, 16 Tex. 286; Higgins v. Johnson's Heirs, 20 Tex. 395, 70 Am. Dec. 394; Story v. Marshall, 24 Tex. 305, 76 Am. Dec. 106; Morrison v. Clark, 55 Tex. 437; Terry v. O'Neal, 71 Tex. 592, 9 S. W. 673; McCutchen v. Purinton, 84 Tex. 604, 19 S. W. 710; Willis v. McIntyre, 70 Tex. 34, 7 S.......
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