The motion for rehearing should be granted in this case, for the reasons indicated in the dissenting opinion. It is shown indisputably that the land in controversy was the community property of W. J. Jones and his deceased wife, Ara J. Jones; that the appellants are the heirs of Ara J. and inherited her community half interest, and have done nothing to divest them of such interest; that the surviving husband made quitclaim deed conveying all his right, title, claim, and interest in the premises to those under whom the appellees claim; that the appellee, Saddler, was a purchaser pendente lite.
It has been generally held from Robinson v. McDonald, 11 Tex. 385, 62 Am.Dec. 480, down to Burns v. Parker, 137 S.W. 705, that the surviving husband cannot convey a greater interest in community property than onehalf. If, therefore, W. J. Jones had assumed to convey the entire property, instead of all his right, title, claim, and interest in it, the effect of his conveyances would have been to convey only his half interest, his vendees having knowledge of the fact that it was the community property of himself and deceased wife, unless the sales were made for the purpose of paying debts of the community.
The burden of proving that the sale of community property was made for the purpose of paying community debts is always upon the vendees of the survivor of those holding under them. And as there is no presumption of law or of facts which relieves them of such burden, it is difficult for the ordinary legal mind to perceive anything monstrous in the intention of the survivor of the community, however secret such intention may be, not to use the proceeds of the sale in payment of community indebtedness, especially when there was no understanding between him and his vendee when the sale was made that the proceeds should be used for such purpose. If a "monstrous doctrine" of injustice is to be conjured, it could be more readily adjured when the community interest of the heirs of the deceased spouse is taken from them by a court on a deed of the survivor of the community which upon its face only purports to convey his interest in property of such estate.
That Jones led Braswell to believe that he was buying all the land cannot in any way affect the deed made by the former to the latter, for, as is said in the majority opinion, "the deed was the best evidence of what was conveyed thereby." As is held in Gladys City Oil, etc., Co. v. Right of Way Oil Co., 137 S.W. 171: "It is a cardinal rule that deeds must be so construed as to effectuate, if possible, the intention of the grantor. This intention is to be gathered from the entire instrument. If the expressed meaning is plain upon the face of the instrument, it will control. Effect and meaning must be given to every part of the deed; each clause being considered separately and being governed by the intent deducible from the entire instrument, and separate parts being viewed in the light of other parts. The intent must be primarily gathered from a fair consideration of the entire instrument and the language employed therein, and should be consistent with the terms of the deed, including its scope and subject-matter" — citing 13 Cyc. 601 et seq.; Hancock v. Butler, 21 Tex. 804; Simonton v. White, 93 Tex. 56, 53 S.W. 339,77 Am. St. Rep. 824; Armstrong v. Lake Champlain Granite Co., 147 N.Y. 495,42 N.E. 186, 49 Am. St. Rep. 683.
If it should be conceded that the sales of the land by Jones to Braswell and Brown conveyed all the land (which concession would be directly contrary to the obvious import and meaning of the deeds) still, it not appearing from the evidence, as a matter of law, that such sales were made for the purpose of paying community indebtedness of Jones and his deceased wife, the question as to whether they were made for such purpose, being matters of fact, should, at least, have been submitted to the finding of the jury.
For these, and the reasons given in the dissenting opinion, this motion should be granted, and the judgment of the district court reversed and the cause remanded for a new trial.