63 Tex. 210 | Tex. | 1885
The land in controversy is admitted to have been the community property of Joel Clapp and his wife, Malinda. Upon the death of the wife, in March, 1852, her half of the land descended to her children, subject to the payment of community debts. Joel Clapp did not die till the 1st of January, 1854, and we have no evidence that at the time of his death any debt existed against the community estate. In order to give the deed of Joel Clapp’s executor the effect of passing title to the entire land, as well that portion of which he died possessed as of the share inherited by the children from their mother, it was necessary that there should have been community debts of Joel Clapp and wife existing at the time the land was sold by Clapp’s executor. Sanger v. Moody, 60 Tex., 96. The burden of proving this fact was upon the parties attempting to give this effect to the deed. There was no proof offered by them on this subject, but they relied upon the simple fact that debts had been presented and allowed against the estate, claiming that the presumption was that they were community-debts, as the wife had died not quite two years before the death of her husband.
Whilst this presumption might be indulged when the deaths of the husband and wife occurred at or about the same time, it is not a reasonable one when so great a period has elapsed, and more especially when the parties against whom the debts are to be presented have existed for so long a time are shown to have been economical and prompt in the payment of indebtedness. Soye v. McCallister, 18 Tex., 80; Simmons y. Blanchard, 46 Tex., 266.
Besides, there is no evidence as to the time when the demands allowed by the executor were presented to him. The sale of property for their payment occurred more than two years after the death of the wife. The court cannot conjecture that these claims were presented before two years had expired from the date of that event,
There is nothing in the proceedings of the county court of Freestone county, in the- matter of Joel Clapp’s estate, that avoids the sales of property made by his executor, so as to render them liable to collateral attack. The executor seems to have administered the estate under direction of the county court, and to have been recognized by that court as lawfully acting in that capacity. As he probated the will, and took the oath, and was recognized by the court, the mere fact that the record does not affirmatively show that he gave bond will not avoid his action and that of the court.
Whilst-the record does not show that the confirmation of the sale of the land made by the executor was entered upon the minutes of the county court, it does show that an indorsement of confirmation was made upon the return of sales by the judge of the court. The failure of the clerk to enter the order was a clerical oversight which cannot prejudice the purchaser in a collateral attack upon his title. This court has, in effect, held that where there is any evidence of confirmation, or of something from which an intention to confirm might be inferred, or something entitling the purchaser to have the sale confirmed, the purchaser will be enabled to claim title to the land. Neill v. Cody, 26 Tex., 289. Under this ruling enough was shown in this case to establish Whitt’s title to one-half the land in controversy. Simmons v. Blanchard, 46 Tex., 266.
We think, therefore, that Whitt, through whom the appellants claim, obtained a good title to Joel Clapp’s half interest in the land through the sale and deed of the executor.
The subsequent quitclaim made to him by a portion of the heirs did not enlarge his interest in the land. They merely quitclaimed their title as heirs of Joel Clapp, and their claim as such did not include any more than their father’s community interest, as they derived no portion of their mother’s interest in the land by descent from their .father. . The conveyance is unlike that in Nichols v. Stewart, 15 Tex., 226. The expressions used in the two deeds are different, and in that case there was no other property to which the conveyance could attach, unless it was the wife’s community estate. Here the parties conveying had held one-half the land as heirs of
At the time the appellees settled upon and improved the land it was owned in common by them and the heirs of D. I. Moody, deceased, who had succeeded to all the interest of Whitt. When the appellees took possession of the land they did not by any overt act give notice that they intended to hold it in opposition to their co-tenants in common. Ho secret intention on their part, nor intention expressed to third parties, but not brought to the knowledge, or presumed knowledge, of Moody’s heirs, could give the appellees the benefit of an adverse possession, or one hostile to their co-tenants. The mere possession itself would be referred to that right which every tenant in common has to peaceably settle upon and enjoy the occupation of the common property, without ousting his co-tenant. Hence such occupancy was not in itself sufficient to charge the appellants with notice that their interest in the land was disputed, and that the benefit of the statute of limitation would be claimed by their co-tenants if suit were not brought within time to prevent its bar.
We therefore agree with the court below in its conclusions, and for the reasons given by the judge that the plaintiffs were entitled to recover only one half interest in the land, and no more. The judgment of the court below was correctly rendered, and it is accordingly affirmed.
Affirmed.
[Opinion delivered February 6, 1885.]
