8224 Writ of error denied by Supreme Court. This is an action of trespass to try title to an undivided one-half interest in 320 acres of land, said 320 acres being the S.W. 1/2 of section 6, Houston Texas Central Railway Company, instituted by appellants against appellees. A jury was demanded and impaneled in the cause, but the court, after hearing the evidence, instructed a verdict for appellees, and from the judgment thereon rendered this appeal is perfected.
The evidence in this case shows that Alex Vallet, on December 15, 1892, purchased from the state of Texas 640 acres of land and fully complied with the law in relation thereto, and on January 3, 1893, one-half of the land was sold by Vallet to W. J. Jones, the father of appellants, being the S.W. 1/2 of the section, and he fully complied with the law in relation thereto. Jones obligated himself to pay the state of Texas $2.50 an acre for the land; that is, $800. He was a married man at the time, with a number of children. He moved with his family on the land, put 100 acres in cultivation, built a house and made other improvements of the value perhaps of $1,000. He lived on the land up to the time of the death of his wife, Ara J. Jones, which occurred on October 21, 1894, and up to the time when he sold the land. On September 14, 1896, he sold 200 acres of the land to D. Braswell, and on April 28, 1897, he sold the remaining 120 acres to B.R. Brown. Jones swore that he was indebted to the state of Texas on the 200 acres that he sold to Braswell in the sum of $600, and that he was indebted to the state in the sum of $360 on the 120 acres when he sold to Brown. He was also indebted to Brown on a debt incurred during the life of his wife. His vendees assumed the debts to the state of Texas. The community debt to Brown amounted to about $300.
The uncontroverted proof showed that when the property was sold by the surviving husband he was indebted to the state of Texas in the sum of $960 for the land, and he owed Brown $300, and other debts to Westendorf and Dr. Bailey, all of which sums were community debts. The evidence leaves no question of doubt that the sums due the state and Brown were paid out of the *Page 70 proceeds of the land. It was not alleged, nor sought to be proved, that the survivor did not act in good faith in the sale of the land, and he undoubtedly had the right to sell the land to pay the community debts without administration of the estate. And it was the right of the surviving husband to sell the land for the payment of community debts, even though the property was sold for more than enough to pay off the debts. Johnson v. Harrison, 48 Tex. 257; Wenar v. Stenzel, 48 Tex. 484; Watkins v. Hall, 57 Tex. 1; Ashe v. Yungst, 65 Tex. 631; Sanger v. Moody, 60 Tex. 96; Walker v. Abercrombie, 61 Tex. 69; Manchaca v. Field, 62 Tex. 135; Moody v. Snoot, 78 Tex. 119, 14 S.W. 285.
That W. J. Jones may have sworn that he did not sell the land to pay community debts, does not alter the fact that he had not paid the community debts, and the purchase money of the land was used to discharge those debts. The best proof on earth that property was sold to pay certain debts is that the money arising from the sale was used for that purpose. There was no evidence that he owned any other property, or that he could have paid the debt in any other way. The Jersey cattle which he received in part payment for the land were used to support and educate some of the appellants in this suit. The debt on the land, instead of having diminished, had been steadily growing, and it was clear that the whole of it would have been lost, if the survivor had not sold it for enough to pay off the debts due on it, and appellants have no cause to complain that he received more than enough to pay off the debts, because the surplus was used for their benefit.
After W. J. Jones made the deed to Braswell to the 200 acres of land, he immediately abandoned it and moved to another locality. When he sold the 120 acres to Brown he was living in the town of Rosenberg, and not on the land, and all the circumstances tend to show that he intended to convey by his deeds, not all of his right, title, and interest in the land as contradistinguished from the interest of his children, but all of his right, title, and interest in view of the debt he was owing on the land to the state of Texas. The vendees construed the deeds in that way, and assumed payment not of a part of the debt to the state, but of the whole debt, and the state of Texas recognized them as the vendees of the whole of the land and substituted them for Jones in the purchase of the land. He received full value for the land. W. J. Jones swore that Braswell paid him $800 in money, $1,200 in cattle, and assumed a debt to the state of $600, making a total of $2,600, and that Brown paid $650 in money, $100 in trade, and $360 to the state, and canceled a debt of $600 which Jones owed, making a total of $1,710 paid by Brown for the 120 acres. For the 320 acres Jones received $4,310, and yet it is insisted that the sum mentioned was paid for a mere chance of title in 160 acres of land. The 200 acres was sold by Braswell for $9 or $9.50 an acre, and the 120 acres was sold by Mulcahy, a vendee of Brown, for $750, which was shown to be their market value. Jones did not swear to the market value of the land, although he placed a fancy value on it, without reference to the market value. The irresistible conclusion from all the facts and circumstances is that W. J. Jones intended to convey all the rights acquired from the state by virtue of his purchase of the land.
W. J. Jones did not make proof of three years' occupancy when he moved on the land, for the simple reason that it had been only about a year since Vallet, his assignor, bought the land from the state in 1892. Proof of three years' occupancy could not have been made prior to the death of Mrs. Ara J. Jones, because she died in October, 1894, about two years after Vallet bought the land from the state. In fact there is no evidence that W. J. Jones ever made proof of occupancy. It is true that Jones swore, "I simply made my proof of occupancy and made a partial payment," by which he evidently referred to his application to purchase which appears in the record. None of the appellants has ever applied to the Commissioner of the General Land Office to be substituted for W. J. Jones or took any steps in regard to the land for nine years after it had been sold by W. J. Jones. Mrs. Stella Harris, one of the appellants, swore, however, that they tried to get their part of the purchase money from their father, after he sold the land, thereby showing that they believed that he had sold the whole of it.
In the deeds to Braswell and Brown, W. J. Jones states that he conveyed "all my right, title, and interest" in the land, and it is the contention of appellants that the deed conveyed only the community interest of Jones in the land. We are of the opinion that the deed on its face conveyed the entire community interest that Jones and his deceased first wife had in the land, and the circumstances, which will be hereinafter referred to, show conclusively that such was his intention, and having so conveyed such interest there was no issue to go to a jury, and the court did not err in instructing a verdict for the appellees.
In the case of Carter v. Conner, 60 Tex. 52, a judgment on a community debt had been obtained against a surviving husband, and certain land, community property, was levied on to satisfy it, and when the land was sold the sheriff executed a deed conveying all the right, title, and interest of the husband in the land, and the Supreme Court held: "Although the judgment is against the husband alone, it is for a community debt; and as in the lifetime of the wife an execution upon it would have been leviable upon the *Page 71 community property, so after her death the same kind of levy would be proper. As in her lifetime, so after her death, the execution would command the sheriff to levy on the property of the husband, and the levy, sale, and deed to the purchaser would show that all these passed only the right, interest, title, and claim of the husband, yet after her death, as well as before it, carried the community interest of both the husband and the wife. The right, title, interest, and claim which the husband has in the property in the lifetime of his wife, so far as the payment of debts is concerned, is no more than it is after her death. He owns the half, and can manage and dispose of all in either case for such purposes. We have seen that even in commercial partnerships the survivor has a legal right to the whole assets which may be sold in payment of partnership debts; the legal right of the husband is fully as strong, and in selling it all the partnership or community title passes to the purchaser." If that be true in regard to the sale under an execution of the right, title, and interest of the husband, there can be no valid reason given why the voluntary conveyance by the husband, either before or after the death of the wife, in satisfaction of community debts, of his right, title, and interest would not convey the entire property. But the Supreme Court did not leave this in doubt to be reached only as a matter of inference, but in the same case said: "The doctrine that a conveyance of the personal interest of the husband in the community property, after the death of his wife, carries the title both of himself and the wife's heirs, when there exists an incumbrance upon the property which is removed by the conveyance, is well established. Stramler v. Coe, 15 Tex. 211 ." A number of authorities were cited to sustain the opinion of the court, and it has since been cited many times with approval. Roy v. Whitaker, 92 Tex. 346, 48 S.W. 892, 49 S.W. 367; Boyd v. Ghent, 93 Tex. 543, 57 S.W. 25; Hill v. Osborne, 60 Tex. 390; Hollingsworth v. Davis, 62 Tex. 438; Hinzie v. Robinson,21 Tex. Civ. App. 9, 50 S.W. 635; Davies v. Thompson, 50 S.W. 1062; Barrett v. Eastham, 28 Tex. Civ. App. 189, 67 S.W. 198.
In the case of Jones v. Jones, 15 Tex. 143, the court, through Chief Justice Hemphill, discussed the powers and authority of the surviving husband over the community estate and said: "As survivor he had competent authority to discharge the debts of the partnership; and whether the discharge of debts, or any act which he might lawfully do as survivor, be done in his own name simply, or in his name as survivor, is immaterial. The law, for the preservation of rights, would look to the substance and not to the form. In fact no such form has been adopted in practice, nor is it essential that it should."
In the case of Corzine v. Williams, 85 Tex. 499, 22 S.W. 399, the surviving wife, as administratrix, had made a conveyance of a land certificate, community property, in which she described the property to be conveyed as "all the right, title and interest of the late Shelby Corzine," and the Supreme Court held that it conveyed the whole certificate, her own interest as well as that of her deceased husband. The court said: "But in the lifetime of the husband the community estate is managed in his name, and upon his death it is administered in his name, and sold and conveyed simply as his property. Therefore, we are of opinion, that if the facts recited in the deed had been true it would have passed not only the interest of the deceased husband in the certificate, but also that of his wife."
Undoubtedly during the lifetime of his wife W. J. Jones could have sold the community interest in the land to pay off the obligations assumed by him to the state of Texas. It was an onerous debt he had assumed, running through 40 years, and he had the authority to rid himself of its burdens either by abandonment of the land, thereby forfeiting it to the state, or by sale to another. He could have made an assignment of the community rights, if he acted in good faith, without the consent of his wife, and that power and authority was not taken from him by the death of the wife. He still had the power to abandon the land and forfeit his rights to the state, and he had the right to sell it in order to relieve himself of a burdensome debt, which he was making no progress in discharging. He chose the latter plan, and when he conveyed all his right, title, and interest in the land, he conveyed all the interest the community partnership had obtained from the state. He then exercised his right and prerogative of abandoning the land, and of breaching the contract of sale made between him and the state, and his vendee was then recognized by the state as a substitute for Jones, just as he had been recognized as a substitute for Vallet, the original purchaser.
Having shown without contradiction that the land was incumbered with obligations to the state, that the debt was not being decreased, that the community owed other debts, that a sale of the entire land was made and the obligations discharged and the debts paid, there was no question of fact to be submitted to a jury, and the court properly instructed a verdict in consonance with the undisputed facts.
W. J. Jones had given his obligation to the state of Texas to pay certain sums at certain times, together with interest, and if that obligation did not constitute a debt, neither would notes for the purchase money of land to an individual constitute a debt. In addition all of the witnesses who testified at all about the indebtedness of $600 to *Page 72 Brown swore that at least a portion of it was made during the life of the deceased wife. Of course all homestead rights in the land were subordinate to the debt due the state, and it cannot be urged that appellants had the right to complete their title by making payments to the state when they become due, when the parts of the debt have been becoming due year after year and no attention has been paid to them by appellants, who have by their acts abandoned any rights they may have had, and are now endeavoring to avail themselves of the industry and payments made by others.
Under the terms of the contract of W. J. Jones, he was to pay the state $780, 5 per cent. interest thereon, and one-fortieth of the principal to be paid annually. It was like any other debt, except that it was made the duty of the Land Commissioner, in case of a failure to meet a payment, to forfeit the land to the state without necessity of re-entry or judicial ascertainment, and even in a case where there was a failure to pay the interest and part of the principal at the appointed time if there was no forfeiture, there was a penalty of 20 per cent. We cannot conceive of any more onerous debt. W. J. Jones and appellants forfeited all their rights year after year and the only reason that their contract was not in terms forfeited by the Land Commissioner was because he recognized Braswell and Brown as being the assignees of W. J. Jones of all the right, title, and interest in the land granted by reason of the application of W. J. Jones to purchase and the execution of his obligation. An incumbrance, as contemplated in Carter v. Conner, rested upon the land which Jones, by his conveyance of his right, title, and interest of all the community interest, sought to remove and did remove. If the deed of W. J. Jones was a mere quitclaim conveyance, it was a quitclaim to all the interest the community had in the land. We are of the opinion that the conveyance was intended to convey all the title that the vendor had by reason of his contract with the state, which was all the title any one had.
While the case of Creamer v. Briscoe, 101 Tex. 490, 109 S.W. 911,17 L.R.A. (N.S.) 154, 130 Am. St. Rep. 869, seems to establish the peonage of the surviving husband in favor of his children, and places a very onerous burden on him, still that decision cannot be invoked to deny the right of the survivor to sell land bought from the state to relieve himself of the incumbrance resting thereon. The decision does not compel the father to spend his life to obtain land for his children by a deceased wife, but gives onehalf of it to them if the father is willing to so enslave himself. The decision fully recognizes the right of the husband to sell land bought from the state without the assent of the wife, and it follows that if he could sell for debts before her death he could afterwards. No homestead rights had accrued before the death of the wife, nor were they acquired afterward. Mitchell v. Nix, 1 Posey Unrep.Cas. 126.
Even if the land had been a homestead, the surviving husband had the power to sell it for the purpose of paying debts against the community estate, although there were minor children and the estate was insolvent. Ashe v. Yungst, 65 Tex. 631; Fagan v. McWhirter, 71 Tex. 567, 9 S.W. 677; Watts v. Miller, 76 Tex. 13, 13 S.W. 16; Martin v. McAllister, 94 Tex. 567,63 S.W. 624. As said in the last case, "The exemption of the homestead and other property was in favor of the father, the head of the family, and did not inure to the benefit of the children on the death of their mother."
It cannot be questioned that W. J. Jones could at any time have abandoned the land and forfeited the purchase made from the state. The law did not impose upon him the duty of remaining on the land, and laboring to pay off the debt to the state, and especially would this be true in view of the fact that he had not only been unable to reduce the debt, but had failed to keep it from increasing. The facts indicate that two alternatives were offered him, an abandonment or a sale, and the survivor adopted the latter, the undoubted wiser course of the two. His children have no just ground of complaint because he was unwilling to spend his remaining days working to pay for a home for them. He had the right to abandon the place and forfeit the contract with the state.
The evidence, the rejection of which is complained of in the sixth assignment of error, had no bearing upon the issues in the case, and was properly rejected.
The testimony of W. J. Jones as to what he conveyed by the deed was properly rejected. The deed was the best evidence of what was conveyed thereby. That, together with all the attending circumstances, indicates that the whole of the interest in the land acquired by the purchase from the state was conveyed. The state authorities so construed it, as did every one connected with the transaction, and W. J. Jones would not be allowed, years after the deed was executed, to impeach it.
The admission of the power of attorney by Lillie Rulfs to Charles L. Michael had no bearing upon the issues of the cause so far as appellant's claim to the land was concerned, and its admission in evidence could not have damaged them. The questions presented under the assignments of error complaining of the evidence are mere abstractions in view of the fact that appellants own no interest in the land.
The judgment is affirmed.