Moody v. Butler

• Decision Date: 06 February 1885
• Docket Number: Case No. 1999.
• Citation: 63 Tex. 210
• Parties: J. D. MOODY ET AL. v. M. E. BUTLER ET AL.
• Court: Texas Supreme Court

63 Tex. 210

J. D. MOODY ET AL.

v.M. E. BUTLER ET AL.

Case No. 1999.

Supreme Court of Texas.

Feb. 6, 1885.

ERROR from Trinity. Tried below before the Hon. John R. Kennard.

Trespass to try title brought by plaintiffs in error to recover land, a part of the headright league granted to Joel Clapp. The defendants pleaded: First, not guilty. Second, title by limitation under the three, five and ten years' statutes. Third, improvements in good faith. Judgment for plaintiffs for one-half the land, and for the defendants for the other. The court, in the conclusions reduced to writing and filed, found against defendants' plea of limitations, and rested the decision on the questions presented in the opinion of the supreme court.

D. A. Nunn, for plaintiffs in error, cited: Simmons v. Blanchard, 46 Tex., 266;Soye v. McCallister, 18 Tex., 99;Murchison v. White, 54 Tex., 78.

Denson & Burnett, for defendants in error, cited: Thompson v. Cragg, 24 Tex., 582;Johnson v. Harrison, 48 Tex., 267;Moreland v. Atchison, 19 Tex. 303;Blanton v. Mayes, 58 Tex., 422;Tippett v. Mize, 30 Tex., 365.

WILLIE, CHIEF JUSTICE.

The land in controversy is admitted to have been the community property of Joel Clapp and his wife, Malinda. Upon the death of the wife, in March, 1852, her half of the land descended to her children, subject to the payment of community debts. Joel Clapp did not die till the 1st of January, 1854, and we have no evidence that at the time of his death any debt existed against the community estate. In order to give the deed of Joel Clapp's executor the effect of passing title to the entire land, as well that portion of which he died possessed as of the share inherited by the children from their mother, it was necessary that there should have been community debts of Joel Clapp and wife existing at the time the land was sold by Clapp's executor. Sanger v. Moody, 60 Tex., 96. The burden of proving this fact was upon the parties attempting to give this effect to the deed. There was no proof offered by them on this subject, but they relied upon the simple fact that debts had been presented and allowed against the estate, claiming that the presumption was that they were community debts, as the wife had died not quite two years before the death of her husband.

Whilst this presumption might be indulged when the deaths of the husband and wife occurred at or about the same time, it is not a reasonable one when so great a period has elapsed, and more especially when the parties against whom the debts are to be presented have existed for so long a time are shown to have been economical and prompt in the payment of indebtedness. Soye v. McCallister, 18 Tex., 80;Simmons v. Blanchard, 46 Tex., 266.

Besides, there is no evidence as to the time when the demands allowed by the executor were presented to him. The sale of property for their payment occurred more than two years after the death of the wife. The court cannot conjecture that these claims were presented before two years had expired from the date of that event, or that they were claims which would not be barred by the two years' statute of limitations, in order to make out a case for the appellants, which they have the burden of proving by sufficient evidence. We must treat the case, therefore, as if the land was not sold to pay community debts. The effect of the sale, if it was not void, would then be to vest title in Whitt to Joel Clapp one-half of the land.

There is nothing in the proceedings of the county court of Freestone county, in the matter of Joel Clapp's estate, that avoids the sales of property made by his executor, so as to render them liable to collateral attack. The executor seems to have administered the estate under direction of the county court, and to have been recognized by that court as lawfully acting in that capacity. As he probated the will, and took the oath, and was recognized by the court, the mere fact that the record does not affirmatively show that he gave bond will not avoid his action and that of...