Heirs of Murphy v. Jurey & Gillis

• Decision Date: 01 June 1887
• Docket Number: 1157
• Citation: Heirs of Murphy v. Jurey & Gillis, 39 La.Ann. 785, 2 So. 575 (La. 1887)
• Parties: HEIRS OF ORY MURPHY v. JUREY & GILLIS -- J. P. MURPHY, WARRANTOR
• Court: Louisiana Supreme Court

2 So. 575

39 La.Ann. 785

HEIRS OF ORY MURPHY v. JUREY & GILLIS -- J. P. MURPHY, WARRANTOR

No. 1157

Supreme Court of Louisiana

June 1, 1887

APPEAL from the Third District Court, Parish of Lincoln. Feazel, Special J.

Barksdale & VanHock, for Plaintiffs and Appellees.

G. L Gaskins, for Defendants and Appellants.

TODD J. FENNER, J., dissents.

OPINION

TODD J.

The plaintiffs, as the collateral heirs of Ory Murphy, deceased sue to recover nine-tenths of the undivided half of the lands described in the petition, the said undivided half being the community interest of the deceased therein and inherited at her death by petitioners.

The defendants answered by a general denial and a call in warranty on their vendor, J. P. Murphy. Murphy, besides the general issue in his answer, denied that Ory Murphy, from whom the plaintiffs claim, had at her death, a community interest in said lands, and averred that though the lands were acquired during the marriage of the deceased with J. J. Murphy, they were acquired by the husband with his separate money, and money belonging to the children of his first wife, and never fell into the community existing between him and Ory Murphy, and further that the estate of J. J. Murphy was, at his death, insufficient to repay the children of his first marriage the funds of theirs used by him in the acquisition of these lands.

The prescription of ten and thirty years is also pleaded by the warrantor and a demand in case of recovery by the plaintiffs for reimbursement for taxes paid and improvements made on the lands.

There was judgment in favor of the plaintiffs decreeing them the owners of the interest in the lands claimed by them, save as to certain designated portions thereof, with a reservation to the parties of the right to adjust their claims for taxes, improvements, etc., in the partition of the lands.

There was judgment also in favor of the defendants and against the warrantor. From this judgment the present appeal was taken by the defendants and warrantor.

The facts of the case established are briefly these:

John J. Murphy was twice married in the State of Georgia. First, to Elizabeth Havell, who died in 1843, leaving several children, of whom the warrantor is one. Second, to Ory Glaze in 1844, and who died in 1860 without issue.

In 1848 Murphy and his wife moved to this State, accompanied by the children of his first marriage, and after his arrival in this State, he acquired by purchase the lands in controversy.

After the death of his wife, Ory Glaze or Murphy, J. J. Murphy, the surviving husband, remained in possession of the lands until his death in 1866. There was no administration on the succession of the wife, and no settlement of the community.

After the death of Murphy there was a partition of his estate, in which partition J. P. Murphy, the warrantor in this case, received the lands in controversy.

It is shown that these lands were all acquired during the existence of the community between J. J. Murphy and his wife, Ory Murphy, and are therefore presumed to be community property. C. C. 2405.

Upon the dissolution of the community by the death of the wife, the title to her share of the community property, the one undivided half of the same rested in her heirs. C. C. 2406; Tugwell vs. Tugwell, 32 Ann. 848.

And though the heirs of the wife received the property subject to the community debts, it is now settled that their action for it may be maintained without allegation or proof of the liquidation or solvency of the community. Ib. and Glasscock vs. Clark, 33 Ann. 584. And it is enough to say in this...