Magee v. Rice

• Decision Date: 01 January 1872
• Citation: 37 Tex. 483
• Parties: R. O. MAGEE AND ANOTHER v. F. A. RICE AND OTHERS.
• Court: Texas Supreme Court

37 Tex. 483

R. O. MAGEE AND ANOTHER

v.F. A. RICE AND OTHERS.

Supreme Court of Texas.

1872.

1. When a married woman died previous to the passage of the Act of August 26th, 1856 (Paschal's Digest, Article 4646 et seq.), leaving children and an estate in community with her husband, that act had not such retroactive operation as empowered the surviving husband, upon filing inventory, etc., to sell community property, and by his conveyance divest the interests inherited by the children from their mother. And if the community property in question was the homestead when the wife died, and her children were minors, they took her community interest by inheritance, subject only to the rights of creditors, and to the surviving husband's right to occupy the premises as a homestead during his life.

2. A married woman died in 1854, leaving children and her interest in community real estate. After the passage of the act of 1856 (Paschal's Digest, Article 4646 et seq.), her surviving husband filed an inventory of the community property, in conformity with the 3d Section of that act, and afterwards attempted to sell and transfer the entire title in a piece of community real estate. It does not appear that the sale was made to provide for community debts, or to reimburse the husband. Held, that the conveyance was void as against the children's half interest, inherited by them from their mother previous to the passage of the act of 1856, unless it be shown that they have been fully indemnified by their father or his estate. There is no legal presumption that they have been so indemnified; and even bona fide purchasers from their father, for a valuable consideration, must prove the indemnification in such a case as the present. The case of Walker v. Howard, 34 Texas, 478, is not to be understood as deciding a different general doctrine.

3. See the opinion, in extenso, as to the interest and powers of a surviving husband in and respecting a community homestead, the wife having died prior to the passage of the act of 1856 (Paschal's Digest, Article 4646), leaving minor children.

APPEAL from Harris. Tried below before the Hon. James Masterson.

A lucid statement of the case is given in the opinion of the court. The action was indorsed as a suit of trespass to try title and for damages; but the petition set out specifically the facts on which the plaintiffs asserted their title, and it prayed for partition as well as the usual relief. Benjamin Richey, their father, was made a co-defendant with his vendees, but died pending the litigation in the court below.

The verdict was for the defendants, judgment accordingly, and a new trial refused.

Henry Cline, for the appellants. Mrs. Richey owned one-half of this land. Being homestead, the husband could not alienate during her life. It was exempt from liability for debts, and not subject to administration; when the mother died, the law vested her half in her children.

These children were in possession from their mother's death until late in 1860. Plaintiffs in 1860 were only twelve and fourteen years of age-- infants, unable to protect themselves, and their father carried them away, and defendants took possession. If a guardian for these children had been appointed, he might have procured an order of court, upon legal grounds, to sell their property to the highest bidder, and conveyed title; but nothing of the kind was done. Defendants claim these children's inheritance nakedly under the act of 1856. Benj. Richey conveyed, “acting in my own right as well as the representative of the community estate of myself and my children, as the heirs of my deceased wife.” What community estate has a father with his children? The laws and jurisprudence of Texas ignore such estate, Louisiana, France, and Spain are silent; wherever community exists, it is between husband and wife, a connubial partnership. Only California, in the case of Panaud v. Jones, so egregiously mistook the Spanish law as to recognize the claim of community rights in the survivor. Our Supreme Court examined this California case, discussed the jurisprudence of Spain and Louisiana, and repudiated the notion that community rights exist after the death of one of the spouses. (Thompson v. Cragg, 24 Texas, 598;Duncan v. Rawls, 16 Texas, 478;Burleson v. Burleson, 15 Texas, 428.)

When Mrs. Richey died, on 31st July, 1854, their connubial partnership was at an end, their marriage was dissolved, and there remained no further marital rights to regulate. The property of the community partnership at the same moment vested in the survivor and the children of deceased, as tenants in common.

The survivor of a commercial partnership cannot make new contracts, binding the estate of his deceased partner; he cannot even acknowledge a just debt, barred by limitation, so as to bind the estate of deceased. Surely the surviving partner in marriage could not have greater power; he might receive what was due the community, and discharge obligations entered into while the community existed, out of property subject to such obligations; but by what right could he, as survivor, convey the title of his children's property-- especially this property, which did not vest sub modo, i. e., subject to debts and administration--but absolutely. Was it not vested in these children as fully as a tract of land which a stranger might have conveyed to them and their father, to hold in common, at the same date? Suppose their mother had, by will, duly probated, devised the undivided half of these twenty-six acres to these children, would not the title have vested in them? And yet the law regards title by descent as superior to title by devise or purchase. The law had provided a method for conveying minor's property, by guardian, and this was the only method known to the law. Expressio unius exclusio alterius.

This act of 1856 assimilated the interest of survivor in community to the estate of surviving husband at common law. It changed--enlarged, survivor's estate. I think this act, on just principles of construction, applies only to parties who entered into connubial partnership after its passage; but, suppose it applies to those previously married, still it purports to be supplementary to the marital rights law. If any part of it applies to estates of deceased persons, that object is not expressed in the title.

But surely the Legislature could not have intended to divest the rights of heirs, acquired in estates descended prior to the passage of the act of 1856. No line or word in the act intimates that this law should regulate the marital rights of the dead. Law is a rule of action--a rule for what is to be done--not for what was done long before the new rule was promulgated.

All our Constitutions forbid retroactive legislation. Vested rights are sacred. No one can be divested of his property, except by due process of the law of the land. That this act of 1856 should operate on the estate of Mrs. Richey, who died in July, 1854, is prohibited by the Constitution then in force, is contrary to the common sense of justice, is not so directed by the act itself, and could not have been the intention of the Legislature.

A dictum in Sossaman v. Powell (21 Texas R., 666), has been cited, and defendants may rely upon it. Let us consider this case. The widow and heirs of Sossaman sued Powell to remove a cloud upon their title to lots on which was the homestead of Charles R. Sossaman. Powell demurred--and excepted specially: first, the petition did not allege administration, nor any reason why there is none; and, second, petition did not allege that said lots had been set apart as homestead.

The court a quo sustained these exceptions. Plaintiffs appealed. These were the only points in the case. The Supreme Court overruled these exceptions, and decided that “the homestead was not subject to administration,” and that “the homestead requires no act of specification to fix its identity, and therefore vests with or without administration, and whether it be, or be not set apart by the Chief Justice.”“They vest exclusively, half in the widow, and the other half in the children of deceased,” and lower on the same page, “the widow becoming the head of the family, is as much entitled to a homestead as was her husband, and the half of the community lands which formed the homestead during marriage becomes hers absolutely, independent of any administration, or other act whatever, for homestead purposes; and if there were no statute, equity would allow her to retain possession of the other half, for the benefit of the minor children of the marriage, as long as they remain in minority, and a family, with the widow at the head of said family.” After deciding the case the court referred to the act of 1856. Sossaman had died nearly two months before the passage of this act, and the court referred to it arguendo.

But, Mrs. Sossaman's rights in no way depended on the act, and it does not appear to have been argued at bar, or maturely considered in decision. Besides, the survivor and heirs were seeking to recover, to clear title--not to convey away; nor is there any intimation in the opinion, that the survivor had power under this act, to convey the children's moiety; but the court does say, that it vested in the children, and the survivor was entitled to retain possession thereof, for the benefit of the children. (21 Texas R., 665; Duncan v. Norris, 21 Texas, 594.)

George Goldthwaite, for the appellees. The counsel for the appellants lays much stress upon the fact that the property conveyed by Benjamin Richey to the appellees was the homestead. I cannot appreciate the force of this position. The protection of the homestead, under the Constitution and the laws, is not by virtue of any prohibition from selling, but a protection against forced sale, a protection from any disposition which is not voluntary. There is nothing in the Constitution or laws which absolutely prohibits a...