11 Tex. 122 | Tex. | 1853
This cause is for the third time before the Supreme Court. In its origin, it was an application, by Josephine Massie and Ann Massie, the widow and daughter of Williamson W. Massie, deceased, that the property of the succession, exempt by the Constitution and laws from forced sale, should be set apart for their sole use. The proceeding was under the Probate Act of 1846, and the application was opposed by D. G. Wheeler, the appellee, on the ground that one of the debts due him from the estate, was of a date anterior to the 16th February, 1846. On the issue thus made, there were decrees of the Probate and of the District Courts. On appeal to this Court, it appeared the creditor, D. G,
It was also proved that the deceased was indebted to the said Wheeler six thousand five hundred and seventy-five dollars and sixty-five cents, on an account contracted after the 16th February, 1846 ; and it appeared also, that, to withdraw the house and lot from the inventory of the deceased, would leave the estate insolvent for the sum of two thousand dollars.
On this state of facts, it was manifest that the applicants were not entitled to have the homestead, to the amount guaranteed by the Constitution, until the note of thirteen hundred dollars, with the interest thereon, was discharged, the same being prior to the Constitutional provision ; and it appearing also, that, independent of the homestead, the assets were not sufficient for the payment of the debts, then, as long as any debts anterior to the Constitution remained undischarged, the applicants were entitled only to the homestead guaranteed by the Act of 1839; and accordingly, it was decreed that the value of the lot and improvements, as they existed at the death of Hassie, should be ascertained; that the applicants should have one month after appraisement, to elect whether they would pay the excess of the value of the improvements- over five hundred dollars; and should they do so, the house and lot were to be set apart for the use of the said Josephine and child ; and on refusal of such payment, the lot and improvements were to be sold, and out of the proceeds, the value of the lot and five hundred dollars were to be paid to the said
This decree being certified below, the value of the lot and improvements was ascertained, and a judgment entered in all respects in conformity with the mandate of the Supreme Court. From this the applicants appealed, and the judgment being affirmed, and mandate issued for its execution, and the plaintiffs having failed to make the payment within the term accorded by the decree, application was made to the County Court for the sale of the homestead. The plaintiffs again interposed obstacles to the execution, and alleged new matter, and attempted to make new issues, to the effect that there was nothing really due on the note of thirteen hundred dollars ; that Massie, in his life time, had paid eight hundred and fifty dollars on the said note, and that his administrator had paid the said Wheeler seven hundred and seventy dollars, which together were sufficient to extinguish the said note. They charge fraudulent practices on the said creditor, in procuring the acceptance and allowance of his account of a date subsequent to the 16th February, 1846, and allege many matters, to the effect that the estate was really not insolvent, and that there was no necessity for the sale of the homestead.
The County Court having issued an order of sale, the cause was again carried by appeal to the District Court, and the judgment of the County Court being reversed for want of conformity to the decree of the Supreme Court, the District Court proceeded to render judgment, the most material point in which is that the sale of the house and lot was ordered to be on a credit of twelve months. In all other respects it is admitted to be in conformity with the decree of this Court. From this judgment both parties have appealed, the creditor contending that the sale should have been for cash ; and the original plaintiffs have assigned various errors which need not be considered, as some of them are palpably absurd, and none of them, as legal propositions, are sound, when viewed with reference to the facts of this case.
The only question of importance, is that raised by the creditor, viz: whether the sale should have been for cash or on a credit of twelve months. By reference to the decree of the Supreme Court, it will be found that the lot and improvements are simply ordered to be sold, without directions as to whether the sale should be on credit or for cash. This left the terms of the sale to be regulated by law, if any such existed— if not, by such conditions as were appropriate to the object to be effected, and sanctioned by the analogies of the law, in
Ordered accordingly.