119 S.W. 724 | Tex. App. | 1909
In August, 1889, T. N. Carter purchased lots four, five and six, block fifty-nine, in the town of Roby, Fisher County, and he and his then wife established thereon their homestead. After several years' occupancy of the homestead the wife died thereon leaving as survivors her husband, T. N. Carter, and four children, viz.: Samuel H., Grady L., Sylnet and Tommy Carter, born in 1894, 1895, 1897 and 1899, respectively, and all of whom are appellees herein. Later, T. N. Carter remarried and in March, 1906, he, joined by his present wife, by general warranty deed conveyed the whole of the property above described to J. F. Davis, the appellant in this case. At the time of the death of his first wife there existed community debts of T. N. Carter and his deceased wife amounting to about five hundred dollars, and the expenses of her last sickness and burial increased this amount to some one hundred dollars more. Of this marriage there also existed community property of the approximate value of eighteen hundred dollars, consisting of the above described homestead, worth five hundred or six hundred dollars, and of an interest in a mercantile business worth about twelve hundred and fifty dollars. T. N. Carter sold to Davis for the purpose of paying said community indebtedness, and in fact partly applied the proceeds of the sale in extinguishment thereof. Davis gave an adequate price in the form of two promissory notes, payable in December and January following the sale. At the time of the sale and the execution of the notes, Davis was without notice of any kind of the interest now claimed by said minor children in the homestead, but was informed of such interest about a month after the execution of his notes.
Upon the above state of facts, which are undisputed, the court awarded to said minor children, at the suit of T. N. Carter as father and next friend, an undivided one-half interest in the lots above described as the community interest inherited from their mother. In so doing we think the court erred, as appellant assigns.
It does not affirmatively appear that at the time Davis was informed of the asserted interest of the minors his notes had been negotiated (though possibly this is to be inferred), so as to bring him strictly within the protection of the rule of an innocent purchaser, as announced in Hill v. Moore,
We therefore conclude that appellant took full title as against all of the appellees, that the judgment must be reversed and here rendered for appellant, and it is so ordered.
Reversed and rendered.