1 Tex. L. R. 191 | Tex. | 1882
Lead Opinion
This case comes before us on the appeal of William Caruth. We have carefully considered such of the assigned errors as are believed to be necessary to a proper disposition of the case as presented.
All the above were undisputed facts in the case, and appeared from the proceedings of the probate courts of Houston and Anderson counties, introduced by appellant Oaruth himself. In such case it is not a charge upon the weight of evidence for the court to assume the existence of the facts. Hedgepeth v. Robertson, 18 Tex., 871.
The fifth assigned error is that the court refused to give certain special charges asked by defendant.
So many of these special charges as are considered necessary to be disposed of in this connection are those numbered 1, 2, 6 and 8.
The first reads: “ If the jury believe, from the evidence, that the marriage relation existing between John Grigsby and Louisa Grigsby was terminated prior to the date of the issuance of the patent to said John Grigsby, the presumption is that the land embraced by said patent was the separate property of John Grigsby, and this being a legal presumption, can only be changed by clear and satisfactory proof.”
The instruction given by the court to the jury in the general charge on this point was, we think, under the evidence, the law of the case. It was as follows: “If you believe, from the evidence, that the grant of said league and labor of land, although said grant is dated after the death of said John Grigsby, was made by the republic of Texas for the reason that said Grigsby was a married man, and that Louisa Grigsby was his wife, you are instructed that said land wras the common property of John Grigsby and his wife, Louisa Grigsby; and if the same was undisposed of at the date of the death of John Grigsby in 184:1, the undivided one-half of said land belonged to the heirs of John Grigsby, and the other half to his widow, Louisa Grigsby, subject only to the payment of debts contracted during the existence of the marriage.”
The second, sixth and eighth special charges asked and refused will be considered together, and are as follows:
2d. “ And though the jury may believe, from the evidence, that the proof adduced upon the trial of this cause is sufficient to rebut
6th. “ If the jury believe, from the evidence, that the probate court of Anderson county, by its judgment, determined that the lands embraced in the partition proceedings were the lands of-John Grigsby, deceased, and that, under the said judgment and the title flowing therefrom, the defendant purchased the lands sued for herein, and paid the fair value of the said lands, the law would protect him in the said purchase of the lands so made.”
8th. “ If the jury believe, from the evidence, that the defendant Caruth purchased the lands in good faith, paid a valuable consideration therefor, without notice of plaintiffs’ claim thereto, they will find for the defendant.”
Under repeated decisions of this court, the interest of the estate of a deceased wife in the community lands is equal to that of the husband, though the title may be in his name, subject only to the control of himself or his administrator for the payment of community debts; and a purchaser with notice of the interest of the deceased wife, from the husband or his administrator, when the sale is not made for this purpose, takes the title to the husband’s interest only. Hays v. Wright, 10 Tex., 130; Johnson v. Harrison, 48 Tex., 257; Yancy v. Batte, id., 46.
In this case, the chain of title under which defendant Caruth claims shows upon its face that the land was community property of John Grigsby and his wife, Louisa, the mother of plaintiffs; that it was not necessary to sell the same for the payment of debts; and that the deed of partition made by the administrator conveyed John Grigsby’s interest only. Appellant Oariith was charged with a knowledge of these facts patent upon the face of his title, and estopped from denying the same.
The decisive question in the case arises under the fourth assigned error, which relates to the legal effect of the partition proceeding had in the probate courts of Houston and Anderson counties.
It is contended on behalf of appellant Caruth, who claims under said partition proceeding, that it was binding on plaintiff Maria Louisa Swindle, in the capacity of an heir of her mother’s estate, in which right she here sues, for the reason that she was a party thereto, and that her remedy, if aggrieved, was by a direct appeal from that judgment.
As unnecessary to this case, we pass by the last question, as to the jurisdiction of the probate court, and rest the decision upon the question whether it in fact or legal effect made partition of Louisa Grigsby’s estate.
It is an established general principle that a party is concluded by a judgment in the right only in which he sued or is sued.
In Thompson v. Cragg it was decided that “ a decree of the district court against children, £ as the heirs of their deceased father,’ * for specific performance of a bond given by the father for title to land, the community property of himself and wife, sold by him in 1837, after the death of his wife, does not affect the interest which the defendants have in the land as heirs of their mother.” 24 Tex., 582; Grice v. Randall, 23 Vt., 242.
The administration of John Grigsby’s estate was commenced in the probate court of Houston county at the July term, 1841, before the death of the wife, Louisa Grigsby, in 1843. It purported to be an administration on his estate alone, and did not involve the administration of the community property to the extent even that a sale of the same was necessary to pay community debts, as in Soye v. McCallister, 18 Tex., 99.
Although there is a recital in the petition for partition of the estate of John Grigsby, made to the probate court of Houston county on November 9, 1847, that the plaintiff in this suit, then a minor of tender years, and who was not represented by any legally appointed guardian, was entitled to an interest in the property in right of her mother, and the same was asked to be distributed, yet, in the final partition made in the probate court of Anderson county at the March term thereafter — to which county the administration had been removed,— her interest in the property, though much larger than many of the other distributees, was entirely ignored, and the distribution had among the children of John Grigsby only, she not being one of his children or his heir. The property partitioned purported to be that of John Grigsby’s estate, was pointed out by his administrators as such, and who under the order of the court made deeds to the several distributees in his capacity as such administrator only. The partition in its legal effect seems to have distributed
Under all the facts and circumstances of the case, we are of opinion that, neither in fact nor in its legal effect, did the proceedings and judgment in the probate courts of Houston and Anderson counties partition the estate of Louisa Grigsby, through whom plaintiff Maria Louisa Swindle derives title to the land in controversy, and that she is not estopped thereby. The seventh and only remaining error necessary to be considered is, that “ The court erred in awarding a partition of the lands between plaintiff and defendant, because the heirs of Emeline Grigsby, who was a part owner of said land, were not before the court, or parties to the suit.”
It appears that Emeline Grigsby was dead, and that Bobert F. Aspley, her heir, was made a party defendant to the suit as originally brought, but that, as defendant William Caruth claimed a severance, Aspley was not represented as a party on the trial from which this appeal was taken. What his pleadings were, if any, does not appear from the record. It is affirmatively adjudged, however, in the court below, that the land in controversy was owned jointly by the plaintiff Maria Louisa Swindle and the defendant William Caruth, she owning one-sixth and he the remaining five-sixths, and partition ordered on this basis, and commissioners appointed. As thus presented by the record, we must presume that the interest of Emeline Grigsby had been vested into defendant Caruth, and that therefore all the parties in interest were before the court.
There being no apparent error in the judgment below, the same is affirmed.
Affirmed.
[Opinion delivered May 19, 1882.]
Rehearing
Ox Motion fob Bbhearixg.
In overruling the application for rehearing in this case and in Ho. 4571, it is only desired to add to what is said in the original opinion, a brief statement embracing an additional reason for refusing to reverse the judgment because of the alleged error, in proceeding to decree a partition of the lands sued for, when the record showed that necessary parties, viz., the heirs of Emeline Grigsby, were not before the court.
The brief of counsel for appellee, in a statement made under the assignment of error , covering this point, treated Robert F. Aspley as the heir erf Emeline Grigsby, and that statement not being contested,
Ho where in the record, not even in the motion for new trial, dbes it appear that appellant- Caruth objected to the partition on,the ground that there were other part owners not before the court. Had the objection been made and overruled, he would have had good cause to claim that so much of the decree as ordered partition should be reversed. That part of the judgment settling the question of title, however, would not have been affected by the error, and would have remained undisturbed. But as the objection to the want of proper parties was not made below, it cannot now avail appellant, even for the purpose of reversing that part of the judgment and decree awarding partition. ,
It is proper to notice that the title of the case as it appears on the docket does not indicate who is the true party appellant. As tried below, D. B. Grigsby and Maria Louisa Swindle were plaintiffs, and Win. .Caruth was defendant. Grigsby recovered nothing, and Maria Louisa Swindle recovered one-sixth of the premises. Caruth appealed from the judgment in her favor giving land to her. Caruth as appellant, and Maria Louisa Swindle as appellee, are the only parties to this appeal. The motion for rehearing is overruled.
Motion ovebbuled.
[Opinion delivered June 26, 1882.]
