McAlister v. Farley, Jury & Co.

• Decision Date: 01 January 1873
• Citation: 39 Tex. 552
• Court: Texas Supreme Court
• Parties: JOHN MCALISTER, EXECUTOR, ET AL. v. FARLEY, JURY & CO.

39 Tex. 552

JOHN MCALISTER, EXECUTOR, ET AL.

v.FARLEY, JURY & CO.

Supreme Court of Texas.

1873.

1. Land purchased and paid for by the husband after the death of the wife, with money belonging to the community estate, is community property, and is held by the surviving husband as a tenant in common with the children of his deceased wife.

2. The act of August 15, 1870, does not confer on the surviving children, as against creditors, a right to a homestead out of the deceased father's separate estate, if they had a homestead fixed and determined in the life-time of the father on the community estate.

3. Ragland v. Rogers, 34 Tex. 622, qualified.

4. The children of a deceased father are entitled to a rural homestead of two hundred acres out of the individual interest of their father, in land, if there was no homestead fixed and established at the time of his death.

5. Where a tenant in common has attempted to sell his interest in an estate by metes and bounds, equity will assign the purchaser the same, on partition, if it can be done without injury to the shares of the co-tenants; and this especially when he has made improvements in good faith.

APPEAL from De Witt. Tried below before the Hon. D. D. Claiborne.

This suit was brought by Farley, Jury & Co. against the children of Alexander McAlister, deceased (three of whom are minors), and John McAlister, as executor of the estate of Alexander McAlister, and H. Clay Pleasants, for the purpose of establishing a judgment rendered in the district court for De Witt county against Alexander McAlister, before his death, and in favor of the plaintiffs, and for the purpose of enforcing payment of the same, by sale of certain lands described in the petition. For that purpose they prayed partition of two tracts of land between the executor and the children of Alexander McAlister.

The judgment of Farley, Jury & Co. was rendered on the twenty-ninth day of September, 1869. H. Clay Pleasants had a judgment in his favor against Alexander McAlister prior to the rendition of the judgment of the plaintiffs; both of these judgments, it was claimed, operated as liens upon the interest of Alexander McAlister in the two tracts of land. The children of Alexander McAlister claimed one-half of both tracts of land by inheritance from their mother, who died in 1857, and during whose life a tract of land granted to Andrew Neil was purchased by Alexander McAlister; and thereon she and her husband and children lived at the time of her death. Another tract of land was bought soon after the death of the mother, with money which, the defendants alleged, belonged to the community estate of their father and mother. The dwelling house was upon the first tract purchased, but only a few varas from the line of the two tracts. Immediately after the purchase of the smaller tract of land it was inclosed, a portion put in cultivation, and so continued by Alexander McAlister until the time of his death. A school house was erected thereon, in which, for many years, the father maintained a private school for the education of his children.

Alexander McAlister continued to live upon the two tracts of land with his children until the time of his death, and the children lived there until the time of the trial. John McAlister claimed title to a specific tract of land out of the Andrew Neil grant, by a conveyance for valuable consideration from Alexander McAlister, the father, to him, made prior to the rendition of the judgments in favor of plaintiffs and Pleasants against him, but which, although deposited in the office of the county clerk for De Witt county, immediately after the same was executed (September 15, 1868), was not recorded until after the judgments were obtained. The children claimed one-half of both tracts of land by inheritance from their mother, and also a homestead of two hundred acres of land out of the interest of the father in the two tracts, by reason of their right to the property of the father exempt by law from forced sale, the estate of the father being insolvent.

They alleged and proposed to prove, that at the time of the death of the mother, the community estate of the father and mother was in no manner indebted; that they had not received any advancement whatever from the father or from his estate; that the smaller tract of land was bought with money that belonged to the community estate of the father and mother; that the debts upon which appellants obtained their judgments were not community debts, but that they were upon separate debts of the father, in no manner incurred for the benefit of his children or their estate; that the estate of Alexander McAlister was insolvent; that the money received by the father for the tract of land sold to John McAlister was not used for the benefit of his children or their estate; that the sums derived from the product annually of one-half of the community estate had been sufficient to support and educate the children, since the death of the mother; that there had been no administration upon the estate of the mother, and that the father had not qualified under the statute by filing an inventory, etc., to manage and dispose of the community estate; which testimony, upon the objection of the appellees, was ruled out, and the appellants excepted.

The cause having been submitted to the court upon facts as well as the law, the court adjudged that John McAlister be quieted in his title to the land claimed by him; that the children, or their guardian, select a homestead of two hundred acres of land out of one or both tracts of land; that the residue of both tracts be divided into two equal portions, one of which the children should have, and the other should go into the hands of the executor, to be sold to satisfy the judgments described in the petition of Farley, Jury & Co.; and in case the children elected to take as part of the homestead the whole or any part of the smaller tract of land, that then the executor should have set apart to him, in addition to his one-half of the larger tract--after deducting the homestead of two hundred acres, and the land sold to John McAlister--such quantity of such larger tract as would be equal in value to the part of the smaller tract so selected as part of the homestead. The judgments of Farley, Jury & Co. and of Pleasants were established as claims against the estate of Alexander McAlister; commissioners were appointed to make partition, and the executor was directed to sell before the next term of the court the share of the land that should be allotted to him. From this judgment the appeal was taken.

The following assignments for error were relied on:

1. The court erred in sustaining the exceptions of the plaintiff to the evidence offered by the defendants (before referred to).

2. The court erred in rendering a moneyed judgment against John McAlister, executor.

3. The court erred in decreeing the tract of 102 6-10 acres to be the separate estate of Alexander McAlister, and by decreeing that if defendants elected to take the same as a part of the homestead, that then the value of such tract, or so much thereof as should be so selected, should be deducted from the interest of the children of Alexander McAlister in the Andrew Neil survey.

4. The court erred in not decreeing to the children of Alexander McAlister a homestead of two hundred acres of land out of the interest of Alexander McAlister in the two tracts of land.

5. The court erred in directing the sale of any part of the land named in plaintiffs' petition prior to confirmation by the court of the report of commissioners appointed to partition the same.

Phillips, Lackey & Stayton, for appellants, cited Neil...