15 Tex. 211 | Tex. | 1855
A sufficient answer to the assigned error, in admitting the testimony of Hensley and Clemons, is, that the evidence was received without objection, and consequently could not now be the subject of exception. But there was in fact no error in admitting the evidence; for, where no consideration is expressed in a deed, the true one may be proved. (Cowen & Hill’s Notes, Part 2nd, n. 289, referring to 1 Penn. R. 486 ; 15 Mass. R. 85, &c.)
The second assignment is, that the Court erred in permitting the bond from James Price to P. H. Coe to be read in O evidence. On the trial, a copy of this bond was offered and received, and the objections to its admission, as expressed in a bill of exceptions, were, 1st. That it was not properly authenticated, to entitle it to be recorded. 2nd. That no connection was .shown to exist between the deed of James Price to Mrs. E. Coe and the bond.
The first question is whether the bond was sufficiently proved to admit it to record. The bond was recorded in 1845, when the provisions on the subject of registry, to be found in the Act of Limitations of 1841, were in force; and by these, any deed, instrument, &c., was entitled to registration, when proved by a subscribing witness, without specification of the fact which the subscribing witness should prove, or
The second ground of exception to the admission of the instrument, viz.: that there was no connection shown to exist between the bond to P. H. Coe and the deed to Mrs. E. Coe, covers a will filed in the agreement of appellant, involving the. principal merits of the controversy, and we will therefore proceed to examine the principal questions in the cause, without further reference to the errors as assigned, or to the order in which they have been discussed by counsel.
This is one of those causes, now becoming too frequent, in which the heirs of a deceased wife are attempting to claim the one-half of the community property, and to subvert the acts and alienations of their father, done by him during the existence of the community, and also after its dissolution by the death of his wife. Controversies of this character are painful in their nature, and the presumption must always be against the child who disavows the acts of the author of his life,-and virtually or expressly charges him with fraud and wrong, in squandering and alienating property not his own, but that of his children. “Honor thy father and mother” is a command, not only of the Decalogue, but of nature; and suits in which
This bond was proved to be for valuable consideration, and as such it was as much binding on the wife as on the husband, unless it had been shown that it was made with the intention to defraud the wife of her rights in the community. The husband has the active control and administration of the ganancial property during the matrimony. No consent of the wife is necessary to a valid alienation of such property by the husband. But excessive or capricious donations and sales, made with the intent to defraud the wife, would be void ; and she , would be entitled to her action against the property of the husband and against third possessors. (L. 5, Tit. 4. lib. 10, Nov. Recop ; Escriche, Bienes Gananciales ; see also Comentaries of Llamos on the 46th law of Toro, from the 54th to the 152nd paragraph.) The bond, then, being valid as against the wife during her life, was an encumbrance on the property of the community, and as such it descended to her heirs. They are entitled to the share of their mother in the common property, but this consists only of half of the residue which may remain after the discharge of all the just debts and liabilities of the community.
The appellant contends that this bond was not a just liability at the death of the wife, on the ground that it was barred by the Statute of Limitations. But this defence cannot avail the appellants, or restore to them the right in the land which was agreed to be conveyed. The bond is, in effect, but an
We will now examine the effect of the deed executed by James H. Price in 1853. And we are of opinion that this
Such being the rights of the husband, as head of the community and as surviving partner, the heirs of the wife cannot repudiate his acts and contracts, begun before but finished after the death of their mother. They receive their mother’s interest, but encumbered with burdens which have the same binding force and effect upon them, as they have upon the husband and surviving partner. And if the husband, neither before nor after the death of his wife, could have brought suit and recovered as against his own bond, this land from the obligee or from his estate," so neither could his children, claiming in right of their mother, sustain such suit, nor can they set up their rights in defence in a suit to try title.
The view we have taken of the rights and powers of the surviving husband accords with the principles and doctrines
We are not to be understood as holding that where the community is dissolved, the surviving partner may control the property as he pleases, even with respect to previous contracts. It is his duty, for instance, to discharge the debts with all convenient speed, so that the estate be not consumed with interest, and just defences against the liabilities of the community must be set up by him, otherwise he might be held responsible to the heirs of the deceased ; and when sued to enforce an executory contract of sale, the heirs of the deceased partner may be joined in order that no cloud should rest on the title to be decreed. But where he voluntarily conveys community lands which, during marriage, he had by a valid contract agreed to sell, his act cannot be gainsaid by the heirs of the wife, nor can they pretend to any rights in conflict with those enuring to the vendee.
Upon the whole, we are of opinion that there was no error in the judgment, and that it be affirmed.
Judgment affirmed.