48 Tex. 46 | Tex. | 1877
Lead Opinion
Mary A. Grigg, Richard B. Grigg, and John H. Grigg, minors, brought this suit, by their next friend, W. C. Batte, to recover and have partitioned an undivided half of 1,000 acres of land, claiming that it was the community property of their deceased parents, H. C. and Mary A. Grigg, and that at the death of their mother, in 1858, they inherited her community interest. They allege an attempted conveyance, in 1862, by their father, joined by a second wife, Rebecca, to David Yancy, Sr., of the entire tract, and that the other defendants, the sons of David Yancy, claim parts of the tract through said David.
The defenses relied on were purchase and payment and valuable improvements, in good faith, and that the plaintiffs had inherited from the estate of their father assets in excess of their interest in the land claimed, and that by reason thereof, and of the warranty contained in the conveyance of their father to David Yancy, Sr., plaintiffs were precluded from
On the trial, the court submitted numerous special issues to the jury, and from their findings it results, that the land was the community property of the first marriage; that the mother died in 1858, and the father, after contracting the second marriage and selling the land, as alleged, died in 1864, leaving, at his death, on hand, of property acquired during coverture of his first, wife, ten negroes, valued at §2,000, and cattle, horses, &c., of the value of §970; of property of the last community, cotton and hogs, of the value of §3,920; and of the separate property of H. C. Grigg, three negro men, valued at §1,000 each. They find that no debts of the estate of H. C. Grigg have been paid since his death, and that only §200 had been probated against his estate. In response to the issue, (twenty-first,) “ What amount of the separate or community estate of H. C. Grigg have his children actually received from his estate since his death, and how much of this came from his estate acquired after the marriage to the mother of said children and before her death ?” the answer is, “ We find plaintiffs in this cause have received nothing from their father or mother’s estate.” The issue was submitted separately, as to each of the defendants, whether he had made valuable improvements, in good faith; and the finding is, that each defendant has made improvements, specifying the improvements and fixing their value, which is, in each case and in the aggregate, in excess of the amount of rent, also found.
On these findings, the court entered up judgment, that the plaintiffs recover of the defendants an undivided one-half interest in the land sued for, and that their title to the same be established, decreeing that the tract of land claimed by each defendant be partitioned between the plaintiffs and the respective defendants according to quality and quantity, allotting to the plaintiffs one-half and to the defendants the remainder of said land, and allotting to each defendant the improvements
There was a motion for new trial, and a motion to reform the judgment rendered, both of which were overruled.
The first error assigned, is that the findings of the jury were insufficient to support the judgment 'rendered, or any judgment.
The findings established that the land was acquired during the marriage of the parents of plaintiffs, and was on hand, undisposed of, at the death of their mother. This was sufficient to entitle plaintiffs to recover, unless the findings on other issues established some equitable defense. Such is believed to have been the doctrine recognized in this court from so early a period, and in so many cases, that we do not regard it as now open to controversy. (Duncan v. Rawls, 16 Tex., 501; Parker v. Parker, 10 Tex., 96; Robinson v. McDonald, 11 Tex., 390; Jones v. Jones, 15 Tex., 143; Wilkinson v. Wilkinson, 20 Tex., 244; Thompson v. Cragg, 24 Tex., 600 ; Magee v. Rice, 37 Tex., 501; Primm v. Barton, 18 Tex., 206; Monroe v. Leigh, 15 Tex., 519.
But, instead of following the assignment of errors, it will suffice to notice the two questions which are alone discussed in the brief of appellants’ counsel, both of which arise out of other findings of the jury.
It is claimed that the jury found improvements, in good faith, by defendants largely in excess of rents, and that, under the statute, the defendants were entitled to pay for their improvements,.before their possession of any part of the land
It is claimed that the findings of the jury show that the plaintiffs inherited property from the estate of their father in excess of the one-half of the purchase-money, with interest, paid to their father for the land by David Yancy, Sr., and that, by reason of that fact and the warranty of their father, they were precluded from recovering the land until they had repaid one-half the purchase-money, with interest. It is contended, that as the findings of the jury establish that H. C. Grigg, at his death, left separate and community property to a considerable amount, and that this property had not been appropriated to pay debts of the estate, only $200 of debt being probated, that it necessarily followed that the plaintiffs had inherited a considerable amount from said estate. This view of the findings disregards the further finding, that the plain
At common law, the liability of the heir did not exceed the lands inherited. (2 Blackst., 243; Rawle on Cov., 579.) The issues submitted were not, perhaps, exhaustive of the case. Indeed, on the question last discussed, no issue was submitted as to the fact of warranty,—a fact patent on the face of the deed in evidence, it is true, but one which should either have been found by the jury, or agreed upon by the parties. But if there were other issues which should have been submitted, it does not appear that any were suggested; and if the evidence seems insufficient to support the findings on some immaterial points, that constituted no good reason for granting a new trial.
Because we find no material error, the judgment is affirmed.
Affirmed.
Dissenting Opinion
(dissenting.)—It cannot have escaped the attention of those who have taken note of its decisions, that, since the present members of the court have occupied the bench, there has existed a decided difference of opinion between the majority of the court and myself, in respect to the law applicable to the class of cases to which this action belongs. When the opinion of the court affirming the judgment of the District Court in this case was read, I made an oral statement of some of the grounds of my dissent from this judgment. In doing so, I had occasion to say, that, in my opinion, there probably existed in the- minds of my brethren, as well as that of many members of the bar, a misconception as to the points heretofore decided by this court in this class of cases. That it could not, as I thought, be justly said that the court had, or in fact had ever, attempted to settle the general and fundamental principles by which controversies between the heirs of the deceased wife and purchasers from the surviving husband, of community property, were to be determined. That the cases which were supposed to have done so, were decisions of the particular phase of the question suggested by the record, or most prominently presented by the counsel of the parties. That while in several of the cases the power of the surviving husband to sell community property for the payment of debts with which it was properly chargeable was fully recognized,—which principle, if properly applicable to the facts as shown in this case, should lead to its reversal,—-still there were other questions, of equal or greater importance, for the determination of the.court in such controversies, which, as I thought, were still undetermined; or, if determined, this had certainly not been done “ on solemn argument and mature deliberation.” (1 Kent’s Comm., 476.) And, therefore, we were not bound to adhere to and follow such decisions if, on examination, they proved to be unsound, as well as contrary to public policy, and -absolutely ruinous to the best interest of society in general.
In announcing my dissent from the opinion of the majority of the court, I stated, if I found the time to do so, after the other cases of like character which were before us had been
Although all the cases to which I referred have not yet been disposed of by the court, I will now undertake to per-. form the task I allotted myself. I do so without further delay, as it seems, from what is said in a recent opinion, that the majority of the court, in disposing of the other cases, may regard the questions which I propose to consider as no longer open for discussion, and it is certainly not my purpose or desire to persist in the discussion of questions which the court regards as definitely determined, beyond a clear and distinct announcement of my views and conclusions, when I deem the question of sufficient importance to require me to do so. For this reason, it would, I think, he improper to longer withhold what I wish to say on the subject.
In disposing of the ease to which I refer, (Johnson v. Harrison,), the court says: “In the recent case of Yancy v. Batte, decided at the present (Tyler) term, the majority of the court held, that the land was community property at the death of the parent being established, the children of the deceased wife were entitled to recover, unless some equitable defense was made. It was said, 'that such is believed to have been the doctrine recognized in this court from so early a period, and in so many cases, that we do not regard it as open to controversy.’ That opinion was supported by a bare citation of cases; and it is proposed now to take a view of those cases, for the purpose of seeing how they justify the position that the question should be treated as settled.”
My name, while at the bar, having been entered in that case as counsel for one of the parties, during the absence of his real counsel, I did not participate in its decision. I had, in fact, however, nothing to do with the preparation or argument of the case. The quasi connection which I had with it, is a sufficient reason why I should refrain from all comment upon it. The opinion of the court shows, I think, that it was intended, in part, at least, as a supplement to the opinion previously pronounced in this case, and is fully as applicable to it as to the case in which it was pronounced; and, in that view, I do not hesitate to refer to it.
The manner in which the majority of the court treat the questions upon which I find myself unable to concur in their conclusions, and as to which I may possibly, to some extent, dissent from opinions intimated by our predecessors, warrants me in supposing that the court have referred, in the opinion in this case, or in that of Johnson v. Harrison, to all of the former decisions of this court which hear upon these questions, or that are deemed material in support of their conclusions. I shall, therefore, endeavor to present the questions raised in each of these cases, and the points actually decided in them.
Before doing this, it may be well for me to say, that the supposed policy or impolicy of the community system is not a matter for consideration by this court. Our duty is limited to the determination of the nature and legal incidents of the system, and the consequences resulting from it, as between parties in the cases coming before us. I have never doubted, and do not propose to controvert, that the wife has a vested interest in the community estate. But this interest, I hold, is in the community property as an entirety, and not in each specific item of property of which it consists. Nor do I con
In reviewing the cases referred to in the opinion of the court, I shall consider them in chronological order. I begin, therefore, with Parker v. Parker, 10 Tex., 85.
The children of Jesse Parker, by a former marriage, brought suit against the surviving wife and her children, to contest the will of their father. The main controversy relates to the doctrine of forced heirs, under the law then in force. The plaintiffs alleged, however, that a part of the land returned in the inventory belonged to the community existing between their deceased father and his first wife, and that, as heirs of their mother, they were entitled to one-half of' it. The court disposed of this branch of the case with these-remarks: “Unquestionably, the will of the testator can operate-only on his own property. He can neither bequeath the separate property of his wife or heirs, nor her or then interest in. their respective communities, though his bequest of the common property is valid to the extent of his interest in that community. If, after the payment of all charges against the first. community, there be any residuum, the appellees are entitled-to their respective shares; provided they be not barred by prescription, or other just cause.” It is apparent, that this; case holds merely that the heirs may recover their interest in then mother’s community from the devisee of the husband, who evidently gets by the will no better title than the testator-had; that their interest in the community was the residuum, after the payment of all charges; and until this residuum was ascertained they could not recover.
Robinson v. McDonald, 11 Tex., 385, is a suit on the bond' of deceased husband for title to land belonging to the community of himself and his first wife. The legal title was conveyed to the wife. The plaintiff was the administrator of’ the husband, yet he made no effort to show whether there had;
Jones v. Jones, 15 Tex., 143. This suit was brought February 13, 1854, by the heirs of the wife, against the administrator of their father, for their community interest of their mother in a league of land granted their father as the head of a family. The wife died September 5, 1837. The husband died in 1845, leaving only 1,414 acres of land unsold. For what purpose it was sold, or to what use the proceeds arising from its sale were applied, does not appear. The agreed facts, upon which the case was submitted to the jury, show that there was a community debt still unpaid-, the amount of which exceeded the value of the .land inventoried by the administrator. The court reversed the judgment of the District Court in favor of the plaintiff, and dismissed the. suit. The court says: “ To determine the issue, it will be essential that the character and extent of the legal rights of appellees, as heirs of their mother to the ganancial property, should be properly understood. On the death of the wife, her estate becomes entitled to one-half of the community property; but her heirs, the appellees, can claim and finally hold only such portion as may remain after payment of all just demands against this community. Febrero, in treating of the division of inheritances, declares that there must be deducted all legitimate .debts which the husband, or wife with his permission, •or both jointly, may have contracted on account of the con
Throughout the opinion, the rights, powers, and duties of the surviving husband, in settling the community or conjugal partnership, as it is aptly called, when dissolved by the death of the wife, are plainly analogized to those of the surviving partner in a commercial or other common-law partnership.
Stramler v. Coe, 15 Tex., 211, was an action of trespass to try title. The plaintiff relied upon a bond for title by the husband, James Price, dated September 17, 1835, and a deed from the husband, made May 6, 1853, after the death of the wife. This deed, however, made no reference to the bond. Defendant claimed by conveyances from the heirs of Mrs. Price, and proved that Price and wife moved on the land in controversy in 1847, 1848, or 1849, and resided on it until 1851, when Mrs. Price died; that she claimed the land as her homestead; that the heirs went on the land in January, 1851. The defendants contended that the bond was not a just liability against the community at the death of the wife, because it was barred by limitation, and had been previously repudiated by Price and wife, as was manifested by their entry upon the land, subsequent occupancy, and claim of it as their homestead. They also urged, that there was no proof that the deed was made in fulfillment of the conditions of the bond. Yet the court held the plaintiff entitled to recover. It says: “The conveyance of Price, after the death of his wife, being but the completion of a preexisting arrangement made during the existence of the matrimony, must be held as valid as if made in the lifetime of the wife. As surviving partner, he had authority to perfect a transaction commenced during the partnership; and this rule is of special force and application in cases of conjugal partnership, in which there is a head that has the entire control of the affairs of the partnership, with no restraint, except that it
The case of Bartlett v. Cocke, 15 Tex., 471, was an action by the heirs to recover land purchased from the administrator, for want of authority of the administrator to sell, and because of irregularities in the sale. None of the questions which we are here discussing were in any way involved in this case. On page 479, to which reference is made in the opinion of the court, it is said: “ The sale was necessary for the payment of debts, and they have been paid by the proceeds; and it would be a scandalous iniquity to suffer an innocent purchaser to be entrapped and stripped of both money and land, giving the one over to the creditors, and restoring the other to the heirs. Such injustice can find no sanction in principles of law, fairly construed and administered, with a view to promote honesty and fair dealing.” If the surviving husband has a general power to sell community property to pay the debts with which it is justly chargeable, unless the purchaser is bound to see to the application of the proceeds, to which we will advert hereafter, it is surely as iniquitous to strip the innocent purchaser, by giving the surviving husband the money, and restoring the land to the heirs. Where the purchase is from the administrator, the purchaser and those claiming under him get notice, with their title, of the nature and extent of the administrator’s authority. When the purchase is from the surviving husband, the record and title deed under which he holds do not put the purchaser on inquiry, but lull suspicion, and aid to mislead him.
The case of Monroe v. Leigh, 15 Tex., 519, decides merely that the purchaser from the heir of the wife, when such heir has inherited more than the value of the land in controversy, cannot recover from one holding under a decree against his administrator for a specific performance of a parol contract of the husband before the death of his wife. The record does not show how or by whom the facts were developed, and the court does not say upon whom the burden of proof rests.
Let us now see what was decided in this case, Duncan v. Rawls. The suit was commenced on the 9th of December, 1847, by Aylett B. Rawls against John Duncan, for the recovery of one-half of a league and a quarter of land granted to Daniel Rawls as his headlight. The plaintiff alleged that he was the sole surviving heir of Hilly Rawls, the wife of Daniel Rawls. That she died in the summer of 1833, and that there had been no administration on her estate. The defendant, it appears, bought the land from Rawls in the fall of 1835, and the same year took possession of it, and continued in possession until the commencement of the suit. A demurrer to the petition was overruled, jury waived, and the court below gave judgment for the plaintiff'. This is the substantial statement of the case as furnished by the reporter. Whether all debts with which the community estate was chargeable had been paid prior to the sale of the land by the surviving husband, or whether the defendant was an innocent or mala-fide purchaser, cannot be told. Now, the only points made by counsel for the reversal of the judgment, or
The first question is merely suggested in the brief of counsel for appellant, and evidently the court gave it but slight consideration. It says: “The community was primarily liable for its debts and charges, but it does not follow that the fact as to indebtedness could be ascertained only by ad-. ministration. This may furnish more conclusive proof, but without administration there may be satisfactory evidence that no debts ever existed, or, if so, that they have been paid.” This disposes of the question before the court, which was merely whether the petition was sufficient on a general demurrer. There is in the opinion, I admit, one or two general and indefinite expressions, which seem to indicate that the learned judge by whom it was delivered supposed or took' it for granted that the burden of proof that there were debts against the community, or that the land was sold for the payment of them, if there has been great delay by the heir in bringing his suit, rests upon the purchaser. ' But there was no such point before the court. The evident defect of logic, in imposing the burden .of proof of the existence of debts upon the purchaser from the husband, because of the delay of the heir in bringing the suit, rather than the length of time which may elapse from the death of the wife to the date of the sale, is too obvious for comment. The attention of the court, it is apparent, was attracted mainly to the other question, to which the argument of the counsel was almost exclusively devoted. It, however, has no bearing upon the present discussion.
. Maxwell v. Guyton, 20 Tex., 202, holds, that if the heirs of the deceased wife have been advanced by, and inherited from the father, to the extent of the value of their inheritance from their mother, they cannot recover their mother’s community interest in property disposed of by their father. There is nothing in this case tending to show upon whom the burden of proof rests to raise a presumption of the father’s want of authority to sell. I admit, when this is done, it is, on princi
Wilkinson v. Wilkinson, 20 Tex., 237, was submitted to the court below upon an agreed statement of facts, which evidently was not calculated to invite a decision of the questions which, ,1 insist, have not been decided, though some of them are suggested in the brief of one of the counsel. Be this as it may, the court did not undertake to pass upon or determine them. The chief justice, who delivered the opinion, says :
“ Two questions arise in this case: 1st. Does the land acquired by the husband, the head of a family, under the act of January 4, 1839, form a part of the community property ? 2d. Had the wife, in the present case, acquired such an interest in the land in controversy as, at her death, an estate therein descended to her heirs ? ”
Almost the entire opinion is devoted to the first of these points. The pith of all that is said upon the second is contained in two lines, asserting that the wife had such an interest as would descend to her heirs. Certainly, it will not be insisted, that a solemn determination of the most important question, in respect to the title to land throughout the State, which has ever been before the courts, is to be decided by the reporter from the bare skeleton of facts found in the record, and this brief announcement by the court.
We come next to the case of Thompson v. Cragg, 24 Tex., 600. This was also an action of trespass to try title. The land in question was the headlight of Prior A. Holder, who emigrated to Texas in 1833, and, as a married man, received a grant for a league and labor of land, one-half of which he gave for its location, surveying, &c. The wife, Julia Holder, died in 1836. The plaintiffs claim her right in the community. On the 24th of April, 1837, Prior A. Holder sold the remaining half of the league to W. D. Thompson & Co., and executed a bond for title. In November, 1837, Holder died. In March, 1847, Thompson and Smith brought suit, on Hold
The counsel of the defendant nevertheless thrust upon the attention of the court two questions, touching the right of the surviving husband to sell community property, upon which the court, ex gratia, expressed its opinion, though, evidently, they were of no practical importance, in view of its ruling as to the effect of the judgment under which the defendants claimed. But neither of these questions has the slightest bearing upon the propositions which we are endeavoring to enforce. The first is, that the sale of the laud by the surviving husband was necessary for the support of the children. The support of the children is certainly not a charge upon the community estate. The fact that the purchaser makes the assumption as the source from which he -gets his title, plainly shows that he was not an innocent purchaser. On the second point, the court delivered a most learned and ex
The proposition which the learned judge discusses, is that asserted by the Supreme Court of California in the case of Panaud v. Jones, 1 Cal., 488, to wit, that the surviving husband has the same absolute control and disposition of the community property after as he has before the death of his wife; that the rights of the children of the marriage do not attach to any part of the ganancials until the death of the father; that, notwithstanding the death of the wife, the surviving father may dispose of community property for any honest purpose, so there is no intention to defraud the children. And he may, says Panaud v. Jones, by last will and testament, direct the sale of community property for the payment of his own debts. That these were the questions upon which this court joined issue with that of California, is too obvious, from heading their opinions, for comment. No question of this kind is now before us. I do not insist that the surviving husband has any absolute right to dispose of community property after the death of the wife. I merely claim for him power to do so for certain recognized and legitimate purposes. If he has the absolute right of disposal, the purchaser will get a good title, although he knew when buying that the husband was not selling for the purpose of discharging community liabilities. If, however, he has a mere power to sell for certain legitimate purposes, if the purchaser knows the property is being sold for some other purpose, he gets no title. The point of difference between myself and the court, is not in regard to the right of the survivor to sell, but whether the innocent purchaser, or the heirs of the wife, must suffer in consequence of his wrongful sale.
Mitchell v. Marr, 26 Tex., 329, rules property conveyed by bond or deed is, unless a contrary intention is shown, community property. About this there can be no controversy. There is nothing said in the opinion in regard to the
It plainly appears, from what is here said, that the court did not decide, in Wilkinson v. Wilkinson, that the vendee of the surviving spouse would not be entitled to protection if he is a bona-fide purchaser. Nor is the question decided in this case. The most that can be said, is that the opinion intimates a doubt of the validity of such a defense; and that it suggests the only plausible ground to justify the doubt. Though not now considering this' point, I will say, in reference to this suggestion, that it is not merely for want of notice of the heir’s rights to his ancestor’s estate, which he acquires by inheritance, and not by a written title, that makes this defense applicable, but that the record gives no notice of the title of the ancestor. On the contrary, it shows an absolute title, in most instances, in the purchaser’s vendor.
The next case in order is that of Burleson v. Burleson, 28
In regard to the two remaining cases, Walker v. Howard, 34 Tex., 478, and Magee v. Rice, 37 Tex., 500, it will suffice to say, that they add nothing to the case to which I have referred at such length. Ho particular importance seems to be attached to them by the court. If, as intimated, the court by whom they were decided was led, to some extent, into error by Burleson v. Burleson in the first case, this was corrected in the last.
Other and later cases could be cited. But as they have not been referred to by the court, I will" not consume time by adverting to them. If I were to do so, they would probably throw no additional light upon tire subject of discussion. As
Nor do I deem it necessary to comment upon the act of March 13, 1848, defining the marital right of parties, or the supplementary act of August 26, 1856. As these acts have been held by the court not to throw restrictions around the surviving husband, but, on the contrary, to enlarge his powers, (Dawson v. Holt, 44 Tex., 174; Lumpkin v. Murrel, 46 Tex., 51,) if the statute is complied with, the husband will have the same right to manage, control, and dispose of the community property, after his wife’s death, as he had during her life.
Having gone through the cases cited and relied upon by the court, I ask, with all due respect, in which of them have the points upon which we differ- been decided ? In what case, by any just rule of construction, can it be said that the question, whether the wife acquires, by reason of the law of community, the legal title by a deed to the husband, has been presented in the record, argued by counsel, or considered and decided by the court ? It has, unquestionably, been repeatedly held, that the surviving husband has power to settle up the community, adjust and discharge its liabilities. His power to sell property, to pay valid claims against it, is fully recognized in this case, and in Johnson v. Harrison. But when and where has it been said that the purchaser must be prepared to sustain his title by proof that there were such debts, and that the sale was made to pay them, and that the vendor acted in good faith and within the scope of his authority ? Which of these cases determines that a purchaser in good faith, for a valuable consideration, from one holding
But if they have been decided, were these decisions made on solemn argument and deliberation ? And are they of such a character as this court should, without question, oh-serve and follow them ? I trust I properly realize the importance, in the practical affairs of life, of the doctrine of stare decisis. I certainly would not lightly disturb a line of decisions, or even a single well-considered case, which has become a rule of property. But if it is the duty of this court to follow precedents and observe and respect decisions, it is frequently equally necessary to examine them without fear, and revise them without reluctance. (1 Kent’s Comm., 477.)
If the cases referred to have gone to the extent thought by the court, they have not, and from their very nature never can, become a rule of property, but must continue, so long as the court is controlled by them, to unsettle it. They will be a source of continued disturbance of society, and lead to the' stirring up of strife and litigation, over stale and often long-forgotten transactions, after the parties by whom they should have been settled have passed away, and after the property involved has passed through many different hands, who know nothing of the facts and circumstances connected with them, and who have no opportunity of learning the truth in relation to them. They can but be fountains of fraud and perjury, poisoning the minds of children, inculcating lessons of selfish distrust and disrespect, in place of reverence, filial affection, and domestic harmony. Such a train of decisions, when fully approved by this court, must cast a cloud on almost every title to land in the State, and, when generally known, reduce the value of real estate, embarrass its transfer, obstruct settlement, retard improvement, drive away emigration, alarm capital, and
Such suits as these haVe certainly never been regarded with any peculiar favor by the courts, and are not to be encouraged. They have, indeed, been reprobated in the strongest terms in this and other courts. (See Stramler v. Coe, 15 Tex., 211; Caldwell v. Hennen, 5 Rob., (La.,) 26.) Much too often there is found in the record strong ground for suspect
It certainly cannot be questioned, if the court is to be governed by general principles, which, undoubtedly, are as applicable to such cases as any others, that if the defendant was a bona-fide purchaser, and held the legal title, the judgment is erroneous. It is equally clear, that if the legal title remained in Grigg till the date of sale to Yancy, that it passed by his deed to Yancy. Nor will it be denied, that the deed.to Grigg was sufficient upon its face to vest the legal title in him. What, then, prevented its doing so ? Or if it vested in him, how was it divested out of him before he did so by his deed to Yancy ? Does the law creating the community property have this effect ? I do not see why it should be so held. I find no such provision in the law itself. If it is so, it must be a mere consequence or result from the doctrine of community. Why should it be thought to have this effect? No doubt, though the legal title be in the husband, the equitable right of the wife is precisely the same as if the deed had been made jointly to her and the husband. And
But if I am mistaken in this, it cannot be denied that the vendee named in the deed has the apparent legal title. If so, should not a court of equity protect an innocent purchaser from him, just as readily as if he held, in fact, the legal title ? As there was nothing on record or elsewhere to put the purchaser on notice of the title of the heirs, the case is not similar to that of the heirs of a party holding the land by deed. True, the title of the heir in such case may not be registered, yet the party in whom the record shows the title being dead, a subsequent purchaser cannot be deceived. Here the party to whom the conveyance was made still holds the deed, and sells the land. Should not equity, under these circumstances, aid a bona-fide purchaser against the heir, not of the party to whom the land was conveyed, but the heir of another party, whose interest is not shown by the record or suggested by the chain of title exhibited to the purchaser ? I submit that it should, or our laws for the registration of deeds serve merely to ensnare those relying upon them. If the heirs of the wife have the legal title, (which I cannot admit, because neither she nor they are named in the deed,) it would he a fraud, under such circumstances, to allow them to take the land from the purchaser, without refunding to him the purchase-money which he paid their father for it. (Bassett v. Nosworthy, English and American Notes, 2 Lead. Cases in Eq., 1.) But for our statute concerning conveyances,
But suppose that both of these propositions are fallacious, still the case should have been reversed. It is not denied that the surviving husband, whether he had the title or not, may sell community property, after the death of the wife, to pay debts. He has a general power to settle up and adjust the community estate. A purchaser cannot possibly know what debts exist against the community. The only source to which he could apply for information is the husband himself. How, it is well settled, that where a trustee has authority to sell for the payment of debts generally, an innocent purchaser is not to suffer through abuse of his trust, by selling when it is unnecessary; nor though he makes an improper appropriation of the purchase-money.
“In the case,” says Justice Story, “of sales for the payment of debts generally, the purchaser is not only not bound to look to the application of the purchase-money, but if more of the estate is sold than is sufficient for the purpose of the trust, it will not be to his prejudice.” (2 Story’s Eq. Jur., sec. 1131; Perry on Trusts, sec. 795; Elliot v. Merryman, 1 Lead. Cases in Eq., 40.)
The court below should have allowed appellants pay for their improvement, if the lands could not be fairly partitioned so that all the improvements would fall upon the share allotted to them. It was so held in two of the cases previously cited. (Robinson v. McDonald, 11 Tex., 390; Thompson v. Cragg, 24 Tex., 600.)