Wenar v. Stenzel, 48 Tex. 484

Wenar v. Stenzel

48 Tex. 484 | Tex. | 1878

Gould, Associate Justice.

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 *489court. (Jones v. Jones, 15 Tex., 143; Primm v. Barton, 18 Tex., 222; Good v. Coombs, 28 Tex., 51; Walker v. Howard, 34 Tex., 513; Dawson v. Holt, 44 Tex., 174.)

' 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 *490and wife Caroline at her death, and that the plaintiffs were their only children, they would find for the plaintiffs, unless they found .the plaintiffs precluded, or then recovery modified, by the defense set up by Wenar, on which they were instructed in the subsequent part of the charge: The subsequent part of the charge contains no allusion to the defense that the sale was made for the purpose of paying a community debt. The defendant asked an instruction which, embraced the following: “If you believe, from the evidence, that such debts ” (community debts) “ did exist, .and that, in order to pay-such debts, J. C. Stenzel sold, in good faith, the said lot to pay the same, or to reimburse himself after he had paid them, then the title of the purchaser would be good' and valid.” Even if this charge was connected with objectionable- matter, it was sufficient to call attention to the subject. The action of the court, in the charge given,-under these circumstances, was erroneous, and entitles the appellant to a reversal. (Chamblee v. Tarbox, 27 Tex., 139.)

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 *491settled by recent decisions of this court, to which it will suffice to refer. (Yancy v. Batte, supra, 46; Johnson v. Harrison, Id., 257.) As to the liability of the plaintiffs on account of the warranty of their father and their interest in his estate, it is scarcely probable that on another trial the extent of the interest so inherited will still be indefinite. It is, therefore, not deemed material to consider that branch of the case.

The judgment is reversed and the cause remanded.

Reversed and remanded.