Jones v. Harris

• Decision Date: 07 June 1911
• Citation: 139 S.W. 69
• Parties: JONES et al. v. HARRIS et al.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

Page 69

139 S.W. 69

JONES et al. v. HARRIS et al.^†

Court of Civil Appeals of Texas. San Antonio.

June 7, 1911.

On Motion for Rehearing, July 1, 1911.

Appeal from District Court, Ft. Bend County; Wells Thompson, Judge.

Action by W. R. Jones and others against O. O. Harris and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

Guynes & Colgin and Chas. L. Michael, for appellants. D. R. Pearson, for appellees.

FLY, J.

This is an action of trespass to try title to an undivided one-half interest in 320 acres of land, said 320 acres being the S. W. 1/2 of section 6, Houston & Texas Central Railway Company, instituted by appellants against appellees. A jury was demanded and impaneled in the cause, but the court, after hearing the evidence, instructed a verdict for appellees, and from the judgment thereon rendered this appeal is perfected.

The evidence in this case shows that Alex Vallet, on December 15, 1892, purchased from the state of Texas 640 acres of land and fully complied with the law in relation thereto, and on January 3, 1893, one-half of the land was sold by Vallet to W. J. Jones, the father of appellants, being the S. W. 1/2 of the section, and he fully complied with the law in relation thereto. Jones obligated himself to pay the state of Texas $2.50 an acre for the land; that is, $800. He was a married man at the time, with a number of children. He moved with his family on the land, put 100 acres in cultivation, built a house and made other improvements of the value perhaps of $1,000. He lived on the land up to the time of the death of his wife, Ara J. Jones, which occurred on October 21, 1894, and up to the time when he sold the land. On September 14, 1896, he sold 200 acres of the land to D. Braswell, and on April 28, 1897, he sold the remaining 120 acres to B. R. Brown. Jones swore that he was indebted to the state of Texas on the 200 acres that he sold to Braswell in the sum of $600, and that he was indebted to the state in the sum of $360 on the 120 acres when he sold to Brown. He was also indebted to Brown on a debt incurred during the life of his wife. His vendees assumed the debts to the state of Texas. The community debt to Brown amounted to about $300.

The uncontroverted proof showed that when the property was sold by the surviving husband he was indebted to the state of Texas in the sum of $960 for the land, and he owed Brown $300, and other debts to Westendorf and Dr. Bailey, all of which sums were community debts. The evidence leaves no question of doubt that the sums due the state and Brown were paid out of the proceeds of the land. It was not alleged, nor sought to be proved, that the survivor did not act in good faith in the sale of the land, and he undoubtedly had the right to sell the land to pay the community debts without administration of the estate. And it was the right of the surviving husband to sell the land for the payment of community debts, even though the property was sold for more than enough to pay off the debts. Johnson v. Harrison, 48 Tex. 257; Wenar v. Stenzel, 48 Tex. 484; Watkins v. Hall, 57 Tex. 1; Ashe v. Yungst, 65 Tex. 631; Sanger v. Moody, 60 Tex. 96; Walker v. Abercrombie, 61 Tex. 69; Manchaca v. Field, 62 Tex. 135; Moody v. Snoot, 78 Tex. 119, 14 S. W. 285.

That W. J. Jones may have sworn that he did not sell the land to pay community debts, does not alter the fact that he had not paid the community debts, and the purchase money of the land was used to discharge those debts. The best proof on earth that property was sold to pay certain debts is that the money arising from the sale was used for that purpose. There was no evidence that he owned any other property, or that he could have paid the debt in any other way. The Jersey cattle which he received in part payment for the land were used to support and educate some of the appellants in this suit. The debt on the land, instead of having diminished, had been steadily growing, and it was clear that the whole of it would have been lost, if the survivor had not sold it for enough to pay off the debts due on it, and appellants have no cause to complain that he received more than enough to pay off the debts, because the surplus was used for their benefit.

After W. J. Jones made the deed to Braswell to the 200 acres of land, he immediately abandoned it and moved to another locality. When he sold the 120 acres to Brown he was living in the town of Rosenberg, and not on the land, and all the circumstances tend to show that he intended to convey by his deeds, not all of his right, title, and interest in the land as contradistinguished from the interest of his children, but all of his right, title, and interest in view of the debt he was owing on the land to the state of Texas. The vendees construed the deeds in that way, and assumed payment not of a part of the debt to the state, but of the whole debt, and the state of Texas recognized them as the vendees of the whole of the land and substituted them for Jones in the purchase of the land. He received full value for the land. W. J. Jones swore that Braswell paid him $800 in money, $1,200 in cattle, and assumed a debt to the state of $600, making a total of $2,600, and that Brown paid $650 in money, $100 in trade, and $360 to the state, and canceled a debt of $600 which Jones owed, making a total of $1,710 paid by Brown for the 120 acres. For the 320 acres Jones received $4,310, and yet it is insisted that the sum mentioned was paid for a mere chance of title in 160 acres of land. The 200 acres was sold by Braswell for $9 or $9.50 an acre, and the 120 acres was sold by Mulcahy, a vendee of Brown, for $750, which was shown to be their market value. Jones did not swear to the market value of the land, although he placed a fancy value on it, without reference to the market value. The irresistible conclusion from all the facts and circumstances is that W. J. Jones intended to convey all the rights acquired from the state by virtue of his purchase of the land.

W. J. Jones did not make proof of three years' occupancy when he moved on the land, for the simple reason that it had been only about a year since Vallet, his assignor, bought the land from the state in 1892. Proof of three years' occupancy could not have been made prior to the death of Mrs. Ara J. Jones, because she died in October, 1894, about two years after Vallet bought the land from the state. In fact there is no evidence that W. J. Jones ever made proof of occupancy. It is true that Jones swore, "I simply made my proof of occupancy and made a partial payment," by which he evidently referred to his application to purchase which appears in the record. None of the appellants has ever applied to the Commissioner of the General Land Office to be substituted for W. J. Jones or took any steps in regard to the land for nine years after it had been sold by W. J. Jones. Mrs. Stella Harris, one of the appellants, swore, however, that they tried to get their part of the purchase money from their father, after he sold the land, thereby showing that they believed that he had sold the whole of it.

In the deeds to Braswell and Brown, W. J. Jones states that he conveyed "all my right, title, and interest" in the land, and it is the contention of appellants that the deed conveyed only the community interest of Jones in the land. We are of the opinion that the deed on its face conveyed the entire community interest that Jones and his deceased first wife had in the land, and the circumstances, which will be hereinafter referred to, show conclusively that such was his intention, and having so conveyed such interest there was no issue to go to a jury, and the court did not err in instructing a verdict for the appellees.

In the case of Carter v. Conner, 60 Tex. 52, a judgment on a community debt had been obtained against a surviving husband, and certain land, community property, was levied on to satisfy it, and when the land was sold the sheriff executed a deed conveying all the right, title, and interest of the husband in the land, and the Supreme Court held: "Although the judgment is against the husband alone, it is for a community debt; and as in the lifetime of the wife an execution upon it would have been leviable upon the community property, so after her death the same kind of levy would be proper. As in her lifetime, so after her death, the execution would command the sheriff to levy on the property of the husband, and the levy, sale, and deed to the purchaser would show that all these passed only the right, interest, title, and claim of the husband, yet after her death, as well as before it, carried the community interest of both the husband and the wife. The right, title, interest, and claim which the husband has in the property in the lifetime of his wife, so far as the payment of debts is concerned, is no more than it is after her death. He owns the half, and can manage and dispose of all in either case for such purposes. We have seen that even in commercial partnerships the survivor has a legal right to the whole assets which may be sold in payment of partnership debts; the legal right of the husband is fully as strong, and in selling it all the partnership or community title passes to the purchaser." If that be true in regard to the sale under an execution of the right, title, and interest of the husband, there can be no valid reason given why the voluntary conveyance by the husband, either before or after the death of the wife, in satisfaction of community debts, of his right, title, and interest would not convey the entire property. But the Supreme Court did not leave this in doubt to be reached only as a matter of inference, but in the same case said: "The doctrine that a conveyance of the personal interest of the husband in the community property, after the death of his wife, carries the title both of himself and the wife's heirs, when there exists an incumbrance upon the property...