On Motion for Rehearing. The record fails to indicate that W. J. Jones made proof of occupancy, but appellants attach to their motion for rehearing what purports to be a copy of proof of occupancy made by Jones after he had sold to Braswell and had removed from the land, which of course is no part of the record and cannot be considered.
The facts of this case disclose that W. J. Jones had bought a tract of public land from the state; that he was a married man; that he entered into the obligations required by law in regard to the land; that he made a small payment on it; that less than two years after the land was purchased Mrs. Jones died; that W. J. Jones and his children continued to live on the land until September 14, 1896, when he sold 200 acres of the land to Braswell and removed to Rosenberg, and in April, 1897, the remaining 120 acres of land was sold by Jones to Brown. At the time of the death of Mrs. Jones community debts existed to Brown, Westendorf, and Bailey, and the obligations to the state for the land were in full force and effect. The debts were not settled by W. J. Jones until after the sale of the land. The debts to Westendorf and Bailey were settled after the sale to Braswell, and the debt to Brown was settled by the sale to him. Braswell and Brown assumed the debts to the state. It was not disclosed how much W. J. Jones owed Westendorf and Bailey, but he admitted owing Brown $100 that was contracted before the death of his wife, while Brown stated it was $300. The debts were paid after the land was sold, and if the identical money that was received from Braswell was not paid to Westendorf for funeral expenses and to Bailey for medical bills, it would not matter, but it is significant that they were not paid for more than two years after the death of Mrs. Jones, and after the sale to Braswell.
The power of Jones to sell was dependent upon the existence of some claim against the community, and Braswell and Brown were under no obligations to inquire into anything except the existence of debts, and the intentions of Jones as to the disposition of the proceeds of the land could not affect their rights, and neither would the fact that the proceeds of the sale largely exceeded the amount of the community debts. Johnson v. Harrison, 48 Tex. 257; Wenar v. Stenzel, 48 Tex. 484. No duty devolved on the purchasers to see that the purchase money was appropriated to the payment of debts. If the purchaser knew there were debts, as both in this case did, and did not act in collusion with the seller to defraud his children, which is not pretended, the secret intentions of the seller to appropriate the money to other purposes than the payment of debts, could not invalidate the sale, and especially would this be true after the property had passed through the hands of persons who have paid valuable considerations for the land without notice of adverse claims. This was held in the case of Sanger v. Moody, 60 Tex. 96, where the facts showed an exchange of community property for other property and the court said: "The property in controversy was not sold for money, but was exchanged for other property, and if the property remained in the hands of the original purchaser there might be some question as to the propriety and validity of such a transaction by a survivor; however, in a given case, such an exchange might be a legitimate method of realizing money indirectly for the purpose of paying debts." It was further held in that case that "the power of the survivor is certainly a general power to sell for the purpose of paying any and every debt the community estate may owe," and that "the purchaser under sales such as the present is not bound to see to the application of the purchase money." Only one community debt was proved in that case.
W. J. Jones stated that he did not remember stating to Braswell or Brown his reasons for selling the land, and what his secret intentions were could not in any manner have affected the validity of the sale, and consequently his testimony as to what his intention was in making the sale made no issue to be submitted to a jury. It was uncontroverted that community debts existed, and the testimony of Brown to the effect that his recollection was that Jones sold the land to him to settle his debt and also get a little cash was not contradicted.
It would be a monstrous doctrine to enunciate, that the title of innocent purchasers for value of property could be destroyed by proof of the secret intentions of a survivor years before to not use the proceeds of the sale of community property for the payment of community debts. If such be the law it would place in the hands of the survivor a terrible instrument to be used in favor of his children against a purchaser, who would be defenseless because unable to meet such a phase of evidence. No such menace can be permitted to hang over the purchaser of community estate. He is charged with nothing but proof of the existence of community debts, and when that proof is made his duty ceases, and what the secret intention of the survivor in making the sale may have been is a matter of no concern whatever to him. It follows, therefore, that what Jones' intentions may have been did not present an issue to go to the jury. Braswell swore that Jones led him to believe that the former was buying all the land, when he paid Jones $900 *Page 79 and assumed the debt due the state. There was no issue to be submitted to a jury.
The motion for rehearing is overruled.