11 Tex. 385 | Tex. | 1854
The defendants in error urge that the bond constituted a money demand against the estate, and redress for its breach should have been sought in the Probate, and not in the District Court. The plaintiff contends that he was entitled to relief in the District Court, and should have had a decree for a moiety of the land, with damages for the value of the other moiety or that damages for the whole should have been allowed. That the plaintiff is entitled to all the interest which the deceased vendor had in the land, or could have legally or equitably claimed, is not to be questioned. For aught that appears, this would be one-half, inasmuch as he is entitled to one-half of the community generally, the children of the wife being entitled to the other half. No inquiry was made as to the existence of debts at the dissolution of the community by the death of the wife, or whether any of these were paid by the surviving husband, and what credits, if any, he was entitled to for such payments, and how much, on equitable principles, his share of the community might be increased, to reimburse him for such expenditures. These equities were not the subject of examination, and there were probably
Should it be ascertained, on the partition of the community property, that the whole of this tract would not exceed the moiety or share to which the husband is entitled, then, if the rights of the other co-tenants be not injuriously affected, the whole should be assigned to the husband or to the vendee representing his rights. (2 Story, Eq Sec. 656, 657.) At all events, the vendee has a claim on the one half of the tract. His right to that cannot be resisted, on any matter apparent on the record, or which was in contemplation of the parties to the suit; and his prayer for title, to that extent, should have been granted.
But he is entitled, not only to the interest which the deceased, as part owner of the community, had in the tract of land. but to damages for the breach of covenant to convey good title to the whole of the land. This, as we have seen, must be specifically enforced, so far as the vendor had title, and for the deficiency—that is, for the remaining half—he must be compensated in damages.
The facts that the property belonged to the community, and that the succession of McDonald is still open, are stated in the judgment as grounds for the dismissal of the petition. There is probably some mistake in the entry. The dismissal of the petition is not warranted by the facts as stated. That the land belonged to the community, could not deprive the vendee of the right or extent of interest, which the vendee had at the time of the sale, either legally or equitably, in the land.— Whether the succession of McDonald was open or not, is a fact which could not materially affect the rights of the plain
From suggestions in the arguments, it may he inferred that the action of the Court below was based on the opinion that the plaintiff must prosecute, his redress in the County Court. But this claim is not properly cognizable in that Court. It is not a money demand, at least not exclusively so, and is not to1 be included in that class of claims which must be presented to, and allowed by, an administrator, or which, as the plaintiff is himself the administrator, must be filed under Art. 1242, of the Digest.
It is ordered, adjudged and decreed, that the judgment of the Court below be reversed, and the cause remanded for a new trial.
Reversed- and remanded.