49 Tex. 49 | Tex. | 1878
It is our opinion that the court erred in instructing the jury that the legal title to lots 7 and 8 was in the plaintiffs.
The plaintiffs claimed under an order of sale made in the administration of the estate of Blount in December, 1871, on the application of Baker, the holder of a judgment against Blount, of date November 27, 1860, and recorded October, 1862. After this, judgment was recorded, and thereby took lien on the lots 7 and 8. Blount conveyed them to Reuben Wright, who went into possession, and, by his tenants, has so continued. The application of Baker alleged nothing as to the record of the judgment, or as to the existence of a judgment lien, but claimed a lien through a.mortgage to Cain; and the order of sale, on its face, purports to be an enforcement only of that mortgage lien.
Regarded as a proceeding to foreclose a mortgage, instituted after the mortgagor had parted with all title in the premises to a vendee who was in possession under a recorded deed, but who was not made a party, the order and sale were insufficient to affect the title or right of possession of that vendee. (Lockhart v. Ward, 45 Tex., 227; Byler v. Johnson, Id., 509; Morrow v. Morgan, 48 Tex., 304.)
Though there was in fact a judgment lien kept alive until after Blount’s death, yet, not having been asserted or enforced in the probate proceedings, it could scarcely operate to give to those proceedings a conclusiveness, as to third parties, which they would not otherwise have.
Conceding, however, that during the lifetime of Blount his vendee, (Wright,) who bought after the judgment lien had attached,- took a title inferior to that of a purchaser at execution sale under the judgment, it does not follow that after Blount’s death the judgment lien could be enforced by proceedings in court,, so as to affect Wright’s title, without giv
Says Freeman: “ Hone but those who are made parties to the scire facias are affected by the judgment of revivor. One about to prosecute a scire facias to revive a judgment lien against the successors in interest of a deceased defendant, in determining who are to be made parties, must be governed by the same principles which would be applicable to the foreclosure of a mortgage, or other lien. He must bring in all persons holding, title under the defendant, but subordinate to the lien; but he need not, and cannot, proceed against persons where claims are adverse to the defendant’s title, or paramount to the lien.” There is nothing in the Probate law in force at the time this application was made, and the sale ordered, indicating that in administering estates judgment liens are to be placed on a higher footing than other liens. (Paschal’s Dig., arts. 5674, 5705.) Hence, if we should look to the alleged judgment lien, it does- not appear that it could be enforced on the probate side of the court, so as to affect the rights of those who had purchased from Blount, and were in possession under their purchase.
There is still another objection to the title under the sale worthy of consideration. It is claimed that the lots in controversy, having been conveyed only by Blount, were not inventoried as part of his estate, did not constitute .any part thereof, and that the court had no jurisdiction to order their sale. As we are unable, from the record, to say whether the tract of land inventoried embraced these lots or not, we will not undertake to pass upon a question so important.
Because Reuben Wright was in possession of lots 7 and 8,
The error in the charge as to the title in these lots is fatal to the judgment.
It is deemed necessary to pass upon only one other of the numerous questions discussed in appellant’s brief. The plaintiffs also claimed title under a conveyance from Mrs. Wright, which is claimed to be valid as a conveyance of community property by her after abandonment by her husband, and at all events as valid to the extent of her half interest in the community after her alleged divorce from her husband. One of the grounds on which this conveyance is disputed, is that the lots were acquired with the separate means of Reuben Wright, and were therefore his separate property, although acquired during marriage. The evidence in support of this claim was the testimony of Wright as to the amount of his means at the date of his marriage in 1860, estimated by him at over $100,000; that his wife, so far as he knew, had nothing, save an interest in an estate in Hew Jersey; and that during his marriage he did not accumulate property, but, on the contrary, lost largely. He says that the means and money used in the purchase of the lots were acquired before Mrs. Wright became his wife; but, from his whole testimony, it is evident that this is an inference from his alleged failure during his marriage to add to his property, rather than a statement of Ms ability to trace the particular means used in the purchase. Outside of his own testimony, there is none other on the point, save that of O. T. Wright, that his uncle (Reuben Wright) had large means when he married Mrs. Wright, and, so far as witness knew, she had nothing; and on cross-examination he said that it was his impression that Reuben Wright paid for the lots with Ms separate means, but that he did not know of his own knowledge. Some of the
Our opinion is, that the court did not err in holding that this evidence was too indefinite to rebut the presumption established by the statute, that property acquired during marriage is community property, and in refusing to submit that question to the jury. The proof should have been “ clear and conclusive.” (Love v. Robertson, 7 Tex., 11.) It was not a case where specific property, proven to have been separate estate, was exchanged; but a case in which it was necessary to trace the means through mutations and changes, and this should have been done “ clearly and indisputably.” (Chapman v. Allen, 15 Tex., 283.) The means invested should have been traced back to the separate estate, not through indefinite channels and unknown changes, but connectedly and plainly.
It is developed, that the title to some land in Minnesota was taken in Mrs. Wright’s name, for the purpose of securing it to her; also, that Mrs. Wright carried on a millinery store several years in her own name; and these are illustrations of the changes which the property may have passed through. These changes may have been such that the proceeds have become community property.
The evidence as to the separate ownership by Wright of the means used in purchasing the lots was too- indefinite to support a verdict, and the court did not err in so treating it, and refusing to submit that question to a jury.
Because of the error in the charge, the judgment is reversed and the cause remanded.
Reversed and remanded.
