No. 2866 | Tex. App. | Nov 22, 1889
This was an action of trespass to try title, brought by appellee against appellant to recover a lot in the city of Corsicana. The facts out of which this litigation arose are the same as those in the case of Henderson v. Lindley, this day decided, except in one particular, namely: The lot in controversy was the common property of J. M. Lindley and his wife, and ivas not set apart in the partition made by the commissioners and approved by the court. If it had actually been embraced in that partition we should be compelled, upon the principles announced in the case referred to, to reverse the judgment from which this appeal is taken. Appellant contends that although this lot was not actually set apart in partition, the order of the court directing all the real property belonging to the estate to be divided between the widow and son of the deceased had the effect to place it beyond the jurisdiction of the County Court, and to render' any subsequent order of th6 court for-its sale for the payment of debts a nullity.
We do not concur in this view. We are cited by counsel for appellant, in support-of their position, to that line of decisions in this court which holds that a judgment in the District Court in a partition suit which fixes the rights of the parties is a final judgment, from which an appeal may be taken, although a subsequent decree is necessary in order to make an actual partition of the property. The argument is more plausible than sound. We do not think it ivas the intention of the Legislature to give-a mere order of partition the effect of taking away the jurisdiction of the County Court to order a sale of the property. We are of opinion that-at any time after such an order is entered and before the partition is actually made and approved, it would be competent for the court, should a necessity appear, to revoke that order and to direct a sale of any portion of the property to pay debts. When the administrator is ordered to turn the property over to the heirs, then and not until then the court loses its jurisdiction over it. Why this lot was omitted when all the other real estate was divided does not appear. It was specifically mentioned in the application for the partition, and it would seem not to have been inadvertently overlooked. It may be that the court or the administrator concluded that the amount retained to pay debts might not be sufficient, and that therefore the commissioners were induced not to divide it.
The lot in controversy not having been in fact distributed, and having as Ave think remained subject to the jurisdiction of the County Court, the fact that the administrator in an application to have his bond reduced represented that all the estate had been distributed except the money in.
It appears that the debt for which the property was sold was the separate debt of the husband, and it is claimed that the lot being community property the sale passed only the husband's interest therein. It was held under the laws as they existed before the passage of the Revised Statutes that community property was subject to the ante-nuptial debts of the wife (Taylor v. Murphy, 50 Tex., 291" court="Tex." date_filed="1878-07-01" href="https://app.midpage.ai/document/taylor-v-murphy-4893149?utm_source=webapp" opinion_id="4893149">50 Texas, 291), and we think there is a stronger reason for holding such property subject to like debts of the husband. There has been some change of the language of the old statutes as incorporated into the new, but we think there is no substantial change'intended. The commissioners who revised the statutes reported that title 50 upon “Husband and Wife” was substantially a reproduction of the old law. See 2 Sayles Rev. Stats., art. 728. "We conclude that the administrator’s sale to appellee passed the title of both the husband and the wife in the lot in controversy.
We have passed upon the decisive questions in the case. The question of notice to appellee need not be considered. There are many assignments and propositions in appellant’s brief, but all depend upon the questions decided and are too numerous to be considered in detail.
The judgment is affirmed.
Affirmed..
Delivered November 22, 1889.