Johnson v. Harrison

• Decision Date: 01 January 1877
• Citation: 48 Tex. 257
• Parties: J. B. JOHNSON ET AL. v. THOMAS HARRISON ET AL.
• Court: Texas Supreme Court

48 Tex. 257

J. B. JOHNSON ET AL.

v.THOMAS HARRISON ET AL.

Supreme Court of Texas.

1877.

APPEAL from McLennan. Tried below before the Hon. J. W. Oliver.

A sufficient statement of the case is given in the opinion.

The case was taken for decision to Tyler, and there decided December 7, 1877.

Norris & Sleeper and J. L. L. McCall, for appellants.

Thomas Harrison, for appellee.--It is contended that the decisions of the District Court, sustaining the demurrer of the defendants to the amended petition of the plaintiffs, should be affirmed--

1. Because it is nowhere stated in the pleadings that the land sued for was not sold to pay community debts.

2. It is nowhere stated that the plaintiffs have not received from their father, or from the estate, assets equal to their mother's interest in said land.

3. It is nowhere stated that it was necessary to resort to this land to satisfy them for their interest in their mother's estate.

4. They have not pretended to show what amount of common property was left at the death of their mother, or to account for the same in any manner.

All these averments are necessary. (Burleson v. Burleson, 28 Tex., 418, 419.) In opposition to that case, is Magee v. Rice, 37 Tex., 483, and the court will determine which of the cases it will follow.

It seems to me, that, where parties set up secret equities against the legal title in the hands of an innocent purchaser for value, without notice, they ought to be required to negative every fact and presumption upon which the legal title could be maintained.

5. The rights of the parties, plaintiffs and defendants, accrued after the passage of the law of 1856, regulating marital rights; and it is respectfully submitted, that the decision of the court ought to be sustained, upon a proper construction of that statute.

That act does not prescribe a mode of administration, but gives to the survivor of the marital partnership the right of disposition over the community property, without administration. (Paschal's Dig., 4647.)

The direction to file an inventory and appraisement could not have been meant by the law-makers to be a condition precedent to the right of disposition. Section 4 provides: “That should the surviving husband neglect, or fail, or refuse to file an inventory within sixty days after the death of the deceased wife, the County Court, upon the complaint of any one interested, or upon its own motion, or on the motion of any other party interested, may require him to do so, or otherwise grant administration as provided by law.”

The object of this section, plainly, is to have provided permanent evidence of the amount and value of the estate, for the information of the heirs, and to enable them to hold the survivor responsible, with his own goods, for such portions of the estate as he may have disposed of. It seems to concede the right of disposition, and contents itself by providing amply against waste and maladministration.

If he cannot sell, why should evidence be provided which is only needed after sale? Why should he be compelled to file an inventory, if he could not without it affect, by any conveyance made by him, the inheritance of the heirs of the mother? Surely there is no use for an inventory, if the property is to remain in his hands intact. If the object of the law was to preserve the estates of minors, certainly that object would have been better accomplished if the survivor should not be required, by the unimportant act of filing an inventory, to qualify himself to waste them.

The filing of an inventory must be a directory requirement, (not mandatory,) unimportant in any view of the subject, and entirely useless if the conveyance of the survivor would be invalid without it. The truth is, the law goes upon the just presumption, that a man is as well qualified after the death of his wife as he was before to manage the community estate. He could sell against her wishes, despite of her, while living:--why may he not sell it after her death without the consent of her children? Are their rights more sacred or important than hers?

Walker v. Howard, 34 Tex., 478, manifestly favors this construction. The court says: “But if the administration was not complete upon the estate of Mrs. Buckley at the date of its passage, [the law of 1856,] then it did affect the community estate, and gave Buckley an almost unqualified control to sell and to dispose of the estate.” In the case of Magee v. Rice, 37 Tex., 483, it is decided, that where the right accrued before the passage of the law of 1856, the filing of an inventory after its passage would not authorize the survivor to dispose of the community property.

In the case of Hartman v. Thomas, 37 Tex., 90, where the mother died after the passage of the law of 1856, no question was made upon the right of the father to alienate the interest of her children in the community estate. The plaintiff only claimed the interest of the father, and prayed for partition.

I am not aware of any case in which this law of 1856 has come directly before this court for construction. Vast interests have vested under it upon the construction now contended for, and it would seem that these interests ought not to be disturbed, unless some positive, unbending rule of law requires it. This law, in its terms, affords ample protection to all parties interested. (Paschal's Dig., 4649, 4650.) If they have failed to use the means provided, no one is to blame but themselves; and, in fact, it is generally true, and it is conspicuously so in this case, that those who are seeking recoveries in cases like this have received the full benefit of sales necessary for their support and education.

On the construction of statutes, the court is referred to Potter's Dwarris on Statutes and Constitutions, 222, and note; Sedgwick on Statutory and Constitutional Law, 368-378.

GOULD, ASSOCIATE JUSTICE.

The children of James C. and Melitea Johnson brought this suit of trespass to try title, claiming, as heirs of their mother, the undivided half of a tract of land of forty acres, alleged to have been community property and the homestead of their parents up to the death of their mother, in 1856. In an amended petition, they show that most of the defendants claimed under conveyances made by their father after the death of his wife, the father himself having died in ____.

The court sustained a general exception to this petition as amended, and the plaintiffs not asking further leave to amend, their petition was dismissed. The judgment is supported in this court, on the ground that where children sue to recover the community interest of their deceased parent from one who holds under a conveyance from the surviving parent, they must allege and prove that such conveyance was not made in satisfaction of community debts, and must, in fact, negative the existence of any equities against their claim.

In the recent case of Yancy v. Batte, supra, p. 46, decided at the present Tyler Term, the majority of the court held, that the fact of heirship and that the land was community property at the death of the parent being established, the children of the deceased were entitled to recover, unless some equitable defense was made out. It was said, “that such is believed to have been the doctrine recognized in this court from so early a period, and in so many cases, that we do not regard it as open to controversy.”

That opinion was supported only by a bare citation of cases, and it is proposed now to take a view of those cases, for the purpose of seeing how far they justify the position that the question should be treated as settled.

One of the earliest cases in which the subject was considered is Robinson v. McDonald, 11 Tex., 385. That was a suit on a title bond to community lands, made by the surviving husband after his wife's death. Hemphill, C. J., says that the holder of the title bond had all the interest in the land that his vendor had or could have legally or equitably claimed. “For aught that appears, this would be one-half, inasmuch as he is entitled to one-half of the community generally, the children of the wife being entitled to the other half. No inquiry was made as to the existence of debts at the dissolution of the community by the death of the wife, or whether any of these were paid by the surviving husband; and what credits, if any, he was entitled to for such payment; and how much, on equitable principles, his share of the community might be increased to reimburse him for such expenditures. These equities were not the subject of examination, and there were probably no facts to raise such claims on the part of the surviving husband or his vendee. The record there shows a case in which the surviving husband, and through him his vendee, is entitled to one-half of the tract of land in controversy.” Here we have it asserted, that as the record showed nothing more than a sale by the surviving husband, the vendee was entitled to one-half, recognizing the right of the wife's heirs to the other half.

Duncan v. Rawls, 16 Tex., 478, is a case originating, it is true, before the present statute, but in which the same question was directly made and decided. A. B. Rawls was the son of Daniel and Milly Rawls, and brought suit to recover, as heir of his deceased mother, one-half of a tract of community land, sold by the surviving father to the defendant Duncan. Hemphill, C. J., says: “The important question in this case may be resolved into two points, viz.: 1st. Can the plaintiff maintain this action without first showing that the community of gains, existing between his father and mother, was settled in a regular course of administration, and that this land remained to the community after the payment of debts? 2d. Was the plaintiff barred of his action by prescription or limitation?

The community was primarily liable for its debts and charges, but it does not follow that the fact as to indebtedness could be ascertained only by...