Johnson v. Taylor

• Decision Date: 01 January 1875
• Parties: ALEXANDER JOHNSON, BY NEXT FRIEND, v. H. E. TAYLOR.
• Court: Texas Supreme Court

43 Tex. 121

ALEXANDER JOHNSON, BY NEXT FRIEND,

v.H. E. TAYLOR.

Supreme Court of Texas.

1875.

APPEAL from Collin. Tried below before the Hon. W. H. Andrews.

R. W. Campbell and R. B. Semple, for appellant.

Throckmorton & Brown, for appellee.

GOULD, ASSOCIATE JUSTICE.

Alexander Johnson, sr., died in 1863, leaving his wife, Martha, and their only child, Alex. Johnson, surviving. His estate consisted of the homestead of one hundred and forty acres, being the community property of himself and wife, and some other property exempt from forced sale, and he left some debts, which have never been paid. There was no administration on the estate, but the surviving wife filed an inventory and appraisement of the community property, under the marital rights act of August 26, 1856, and afterwards sold and conveyed the homestead to parties from whom it was purchased by the defendant, Taylor. This suit was brought in the name of Alex. Johnson, jr., by his next friend, S. A. Roberts, to try the title to the homestead. Pending the case Roberts died, and R. W. Campbell was admitted to make himself a party and prosecute the suit as next friend. A jury was waived and the case submitted to the court upon an agreed statement embracing the foregoing facts, the result being a judgment for the defendant and against the next friend for the entire costs.

It is claimed by appellant that inasmuch as the father's estate was insolvent, the 45th section of the probate law of 1848 (Paschal's Dig., art. 1154) had the effect of vesting in his child, the plaintiff, an absolute estate in one-half of the homestead not subject to sale by the survivor of the community. The case of Green v. Crow, cited by appellant, 17 Tex., 188, is to the effect that, under the section referred to, the right of the widow and children to such exempt property is absolute as against creditors. But there is believed to be nothing in that law or that decision justifying the conclusion that the child in such a case, as against the surviving widow, takes any other estate than that given him by the general laws of descent and distribution. Where the homestead was the separate property of the survivor, the right of the survivor to sell and convey it is well settled. (Brewer v. Wall, 23 Tex., 589;Tadlock v. Eccles, 20 Tex., 782.)

The children have no interest in the homestead as such, as against the surviving parent, by virtue of the homestead rights of the deceased parent. If it was the community...