47 Tex. 173 | Tex. | 1877
The lots in controversy in this suit, Nos. 1 and 2, in block 16, in the city of Paris, in Lamar county, were the community property of Jacob Long
The plaintiff's, as children and heirs of Mary D. Long, brought this suit to recover the lots, or one half the amount of the note given by Walker to Jacob Long, which was paid by Walker to Long, in Confederate treasury notes, in 1863, when he received the deed for the lots.
The statute requires such an inventory and appraisement “to be taken and recorded, as in case of administration, and to have the same force and effect in all suits between parties claiming under it.” (Paschal’s Dig., art. 4648.) The same statute authorizes any one interested in the estate to require this to be done, or, upon failure, that administration be granted upon the community estate. In this case, the inventory and appraisement may not have been full, as shown by the facts proved on the Mai, and it was not signed by
If there had been no such inventory and appraisement filed, Jacob Long, having sold the lots during the lifetime of the wife, and given a bond for title, and having received part of the purchase-money for them, and a note for the balance, had the right, after the death of the wife, to execute a deed in pursuance of his obligation in the bond, and receive the payment of tire note executed to him for the balance of the purchase-money. The case of Brewer v. Wall, (23 Tex., 588,) decides this question as to his right to execute the deed.
The note being payable to him, he could have collected it by a suit at law, and had the land sold in discharge of it, as has often been done in our courts. There is nothing in our statutes or laws, as evidenced by the decisions and practice in the courts, which requires a debtor, under such circumstances, to suffer himself to be sued, to interpose a defense to
The note was a chose in action, and the receipt of the payment-of it simply reduced the property, which it represented, into possession. Jacob Long was the payee in the face of the note, and if 'other persons had an equitable interest in it, not represented on its 'face, a knowledge of that fact by the maker would heno ground for refusing to pay it-upon demand by the payee, who -was the holder and ostensible owner, in the ■regular course of business. The contrary rule would -require the maker to inquire into and act in reference to the equitable -rights, attaching to the note in the hands of every person that -might have had it by assignment, before its payment, which would he destructive of the negotiability of such instruments.
Suppose Jacob Long had sued Walker on this note: would the court have sustained a plea in abatement filed by Walker, that these plaintiff's had an interest in the community estate, of which this note was a part ? If not, he had a right to pay "it without suit. Had such a suit been brought, and they had intervened in it, claiming a half interest therein, and the court had entertained any such -intervention, it would have involved the settlement and adjudication of the whole community -estate, in which the defendant would have no interest, and for which it might be difficult to find a precedent. Such an intervention might- well he refused them as an equitable remedy, because they have an ample remedy under the statute, by requiring an inventory and appraisement of the community -estate, and a bond for its faithful administration. (Paschal’s Dig., art. 4648.)
It is contended, that Jacob Long had no right to receive payment in Confederate treasury notes. It is not shown what was -the value of said notes, or upon what terms they were -received. The mere fact that the payment was in that
There is nothing alleged in the pleadings or shown in the evidence which makes this otherwise than an ordinary transaction in all of its parts; and, especially, nothing tending to establish that Jacob Long intended any fraud upon the rights of his children hy making the deed and receiving the payment of the note, or that Walker did not, in good faith, pay his debt to Long, which he was bound to do before he could get Ms title, in the ordinary course of business, and without any notice of any fact that would render it illegal or inequitable on. his part.
■ The views here presented are based upon the facts alleged and established beyond controversy, to wit, that the lots were sold before the death of the mother of plaintiffs, and the deed was executed in pursuance to the bond for title, and the note given for the lots was paid in Confederate treasury notes after her death. Upon such facts, the defendant was entitled to a verdict and judgment in his favor.
The court, in its charge, required, in addition to these, that Jacob Long should have returned an inventory and appraisement, and mstructed them that it had been done: If he was mistaken in the fact that a legal inventory and appraisement was returned, he was equally mistaken in the instruction that such an inventory and appraisement were necessary to establish the defense. The charge neutralized itself, and was immaterial, as it required, apart Mom this, all of the other facts to be established which were necessary for the defense. The other issues made in the pleading and evidence, in regard to the disposition of the community effects, are also immaterial, in the view we take of the case.
Judgment affirmed.
Affirmed.