Robinson v. Mcdonald's Widow & Heirs

• Decision Date: 01 January 1854
• Parties: ROBINSON v. MCDONALD'S WIDOW AND HEIRS.
• Court: Texas Supreme Court

11 Tex. 385

ROBINSON

v.MCDONALD'S WIDOW AND HEIRS.

Supreme Court of Texas.

1854.

Where the vendor, in an executory contract to convey land, dies, and his vendee becomes his administrator, the vendee can sustain an action in the District Court, for specific performance, or for performance in part and damages for the residue, against the widow and heirs, without any previous action in the County Court upon the subject.

In general, the surviving husband cannot convey a greater interest in community property than one-half; but it seems that a purchaser may claim the benefit of equities which may arise in favor of the husband, from the payment of charges against the community, and in favor of a purchaser of part of land which is incumbered, by which he would be secure, so far as the husband has paid debts against the community beyond the amount of community consumed by him, and where the deceased wife's portion of the community yet remains after satisfying the sale by the surviving husband.

It seems to be a rule, in the partition of land, where one part owner has made improvements in good faith, to allot the part upon which the improvements are made to the party making them, or if that cannot be done, then to allow compensation for such improvements.

Where a surviving husband contracts to convey community property, and dies, the claim of the vendee is not a money demand, at least not exclusively so; and is not included in that class of claims which must be presented to, and allowed by, an administrator, or which (as the plaintiff is himself the administrator) must be filed under Art. 1242 of the Digest. (Note 59.)

Appeal from Walker. This is a suit to compel specific performance of a contract for the sale of land. The plaintiff, B. W. Robinson, in his petition, alleges that Wm. McDonald, in his lifetime, on the 19th day of November, 1851, executed his bond to convey title to the petitioner, of a certain tract of land lying in Walker county, more fully described in a deed from James W. Spillers to Finetta McDonald; conveyance to be made within two years from the date of the bond; and that the petitioner had paid to the said McDonald a full consideration for the said land; that McDonald, in 1852, departed this life, intestate, without having executed a deed to said land; that the petitioner has been duly appointed administrator of the estate of the said McDonald, and being such, could not procure a title through the County Court; that MacDonald left certain children, who are named as heirs, and, also, one who is his child by his last wife, now his widow. He prays that the said widow and heirs be cited; that guardians ad litem be appointed for the minors; and that the petitioner be decreed to have title to the said lands, and such other relief as may seem equitable. The minor heirs of the deceased, who are children by his first wife, among other matters in their answer, allege that the land sued for belonged to their mother, in her separate right, and that it has descended to her children as heirs, and that their father never had any title to said lands. The plaintiff amended his petition and alleged that the lands were purchased and paid for by Wm. McDonald; that Finetta McDonald paid no part of the purchase money, although the deed was made to her. He further states, that since his purchase, he has placed valuable improvements on the land of a permanent character, worth five hundred dollars, and prayed that if a specific decree could not be made, he might recover his purchase money and interest, and the value of his improvements, and all such damages as he may be entitled to, from the failure in the title. The bond for title, which was filed, was executed on the 19th November, 1851; and, by recital, it shows that the deed from Spillers to Finetta McDonald, the wife, was executed on the 31st day of January, 1851. The defendants, by amendment, allege that the sale of the said land by their father was made after their mother had departed this life. The cause was submitted to the Court, upon the petition and answer with their amendments, and upon the testimony; and because it appeared to the Court that the sale was made subsequent to the death of Finetta, the wife, and tha?? the land was community property, and it further appearing that the succession and administration of Wm. McDonald's estate was still open in the County Court, it was ordered that the petition be dismissed.

There was proof establishing the fact, that the property belonged to the community; that the sale by the deceased to Robinson was subsequent to the death of his wife Finetta; and that Robinson, since his purchase, had made improvements of a permanent character, to the value of four hundred dollars.

Yoakum & Branch, for appellant. This bond, under the Act of 1848, was not a claim for money (Hart. Dig., Art. 1159), and such as the administrator must proceed to prove up under Article 1242. He alleged and proved improvements to amount of four hundred dollars. Again, the six months had expired, and he could not present his claim to the County Court. As he had made valuable improvements, he was entitled to more than the purchase money and interest. (Sutton v. Page et ux., 4 Tex. R., 142.)

The County Court is not the proper tribunal to award these damages, or to value these improvements. A jury will best do justice to all parties. For this cause, the Act of 1846 was modified by that of 1848, in which money claims alone are to be presented before suit. (Hart. Dig., Art. 1159.)

Robinson should have had relief in the District Court. It could have given him a decree for a moiety of the land, and let a jury assess the value of the other moiety; or it could have given him damages for all. T...