48 Tex. 484 | Tex. | 1878
That sales of community property, fairly made by the surviving husband, for the purpose of •discharging community obligations, cannot be disturbed by the heirs of the deceased wife, is not an open question in this
' This power in the surviving husband has been recognized in recent decisions, and the opinion expressed that it was not affected by the act of 1856, amendatory of the marital-rights act, enabling the survivor of the community to control and dispose of the community estate by filing an inventory and appraisement thereof. Says Justice Ireland: “It must be borne in mind' that the surviving husband had the right to sell community property to pay debts against the community after the death of the wife, without the aid of this statute. It was clearly not the intention of the Legislature to throw restrictions around the survivors in such cases, but to enlarge their powers.” (Dawson v. Holt, supra. See, also, Lumpkin v. Murrell, 46 Tex., 51, and Johnson v. Harrison, Supra, 257.)
The answers of defendant set up, amongst other things, the existence of community debts to a large amount, and that these debts were discharged from the proceeds of the sale of the lot sued for. He introduced evidence of a community debt of between seven and eight hundred dollars, besides interest for at least four or five years, secured, too, by a deed of trust on the lot sold, and evidence tending to show that this debt was intended to be paid out of the proceeds of the sale, and actually was so paid, the creditor releasing the interest.
It was the right of defendant to have the jury pass upon this defense. The charge of the court, however, in effect, excluded it from their consideration.
The jury are told: “It is admitted that J. C. Stenzel never qualified as surviving husband, so as to enable him to convey the community interest of his deceased wife, if said Caroline was his wife, in any lands owned by him at her death.” They are further told, that if the evidence established that the lot sued for was the community property of J. C. Stenzel
Appellee .contends that the evidence shows that there was a large amount of personal property which should have been first sold, and that therefore the sale was unnecessary. But' the • only personal property disclosed by the evidence consisted of machinery used by Stenzel in his business. It may have been judicious and fair in him to sell the lot rather than the machinery, and as it appears that the lot was not susceptible of division, the fact that the proceeds of the sale ($4,200) largely exceeded the amount of community debts-shown by the evidence, is not inconsistent with the conclusion that the sale was nevertheless fairly made for the purpose of paying such debts. There is no rule of law requiring, in such cases, the personalty to be exhausted before selling lands; nor was the court justified, by anything in the pleadings or evidence, in withdrawing from the jury the question as to whether- the sale had been honestly made for the purpose of paying community debts.
There are other questions discussed, some of which are
The judgment is reversed and the cause remanded.
Reversed and remanded.