The marriage of Benjamin Richey with Rosanna, his first wife, in 1840; the birth of four children to them during their marriage; the death of the wife and mother, on the 31st of July, 1854; the subsequent death of two of the children, intestate and without issue; the heirship of the plaintiffs, Mrs. Q-ogle and Mrs. Magee, are all facts admitted upon the record.
It is also shown by the evidence that during the marital partnership qf Richey and wife, they acquired twenty-six acres of land in Harris county, which they improved and occupied as a homestead; and that Benjamin Richey, with his minor children, occupied the same until after he had sold it to the -appellees, on the 10th day of July, 1860.
*499The defendants offered in evidence, on the trial, the petition and inventory filed by Richey as the survivor of the connubial partnership, on the 8th day of June, 1858; and also their deed, dated July 10th, 1860, for 14 and T8^- acres, part of the twenty-six acres owned and occupied as homestead at the time of Mrs. Richey’s death. Also the obligation of the appellees to said Benjamin Richey, for twelve thousand dollars, the same appearing by indorsements to be fully paid.
This was substantially the evidence before the jury.
The charge of the court was, first, “ that if the property was “acquired during the coverture of Benjamin and Rosanna “ Richey, though the title was in the name of the husband, it “ was community property, and the husband might sell it during “the life of the wife, without her joining in the deed, unless it “were a part of the homestead.” But the jury were also very properly instructed that they had nothing to do with any conveyances, except the conveyance to the defendants. The charge proceeds to say to the jury, that “if B. Richey, as surviving “ husband, filed in the County Court an inventory of community “ property owned by himself and his deceased wife, and that the “ same was approved by said court before the sale to the defendants was made, and that it was made for a valuable considera- “ tion, then the deed to the defendants passed the title to them.”
If this portion of the charge correctly states the law, then it was certainly competent for the plaintiff's to show that a valuable consideration was not paid, and it was error to exclude the evidence of Croesbeclc, which was offered to prove that the assumed payment was made in Confederate money.
But this portion of the charge is otherwise erroneous. The Act of the 26th of August, 1856, entitled “An Act supplemen- “ tary to the Act of March 13th, 1848, entitled, an Act better “ defining the marital rights of parties,” was not in force on the 31st of July, 1854, when the mother of these appellants died; and there was a descent cast of the title, upon the - children of Mrs. Richey, of her half of the community property; and under the Act of 1848, the children took this property, subject only *500to their father’s right to use and occupy it during his life as a homestead, and the rights of the cornmunity creditors.
This is the doctrine recognized in Jones v. Jones, 15 Texas, 140; Tadlock v. Eccles, 20 Texas, 782; Brewer v. Wall, 23 Texas, 585; Good v. Coombs, 28 Texas, 50; Burleson v. Burleson, 28 Texas, 418; Cooper v. Singleton, 19 Texas, 267; Sossaman v. Powell, 21 Texas, 666; and Walker v. Howard, unpublished. (34 Texas, 478.)
Though several of these cases were decided upon a very different state of facts, some of them were decided under the Act of 1848, and some of them under the Act of 1856, and it is notorious to the profession, and a fact by no means denied by the court, that some degree of confusion will be found to exist among the many opinions from time to time delivered by our predecessors and by ourselves, almost every case having come before the court upon a state of facts differing from other cases; and it is by no means remarkable, that both the Bar, and the Bench should have been thrown into some confusion. But to return to the case at bar.
The Act of August 26th, 1856, upon the state of facts in this case, could not have related back .to the 31st of July, 1854,. to divest the interest of the appellants, or place it in such a position that the surviving father, by filing an inventory of the community property in the manner directed by that law, could have acquired any right to sell the property, unless it had been necessary for the purpose of paying community debts, or to reimburse himself for advances made on the community property.
Hpon a very full and careful examination of the law, we are then of opinion, that upon the death of the mother, Mrs. Richey, her interest in the ganancial property descended to her children, subject only to the community debts and the rights of the surviving partner for reimbursements.
But it is insisted that other community property has descended to the plaintiffs, fully equal to their mother’s interest in the entire community property. If this be shown, equity *501will protect the rights of bona, fide purchasers, for a valuable consideration, from the father.
But in this action we do not think it incumbent upon the appellants to prove that they have not received their full share of the community property. This is a matter of defense, and the onus probamdi is upon the appellees; and we will here remark, that if the case of Walker v. Howard is in conflict-with this doctrine, it must stand corrected, although we think it is not.
The second branch of the charge to the jury, as well indeed as the whole charge, appears to proceed upon the idea that the Act of August 26th, 1856, must apply to this case, and for that reason, no doubt, the learned judge, as we think, erroneously instructed the jury—as also in the third charge.
The second and third charges read as follows :
“ Second. On the question of the right .of the survivor of “ the connubial partnership between B. Eichey, the father, and “ Eosanna Eichey, the mother, of plaintiffs, to sell the home- “ stead, being community property in the inventory returned “ by the father, you are charged that the head of the family “ cannot be controlled in the disposition of the homestead by “ the children after the death of the wife, and that the deed “ given in evidence by the defendants vested the title to the “ property conveyed in them.
“ Third. It makes no difference whether the mother died “ before or after the 26th August, 1856, so that the sale of “ the survivor was after said date, and after a return of an “ inventory of the community property, in accordance with the “ law, which took effect on 26th August, 1856, entitled ‘ An “ ‘ Act supplementary to the Act of March 13th, 1848, entitled “ ‘ an Act better defining the marital rights of parties ’ (Pas- “ chal’s Digest, page 780); and the jury, if convinced that “ such sale was made to defendants by B. Eichey, the father “ of plaintiffs and surviving husband of their mother, after “ he had returned an inventory of the community estate of tc himself and his deceased wife, and after its approval by *502“ the County Court of Harris county, Texas, you will find for “ defendants.”
We have already sufficiently explained the law of this case, to show that both the second and third branches of the charge are erroneous.
Our opinion will perhaps be better understood if we say that it was not the homestead right which descended from Mrs. Eichey, upon her death, to her children, which the surviving husband could not control or even alienate; but it was the fee of an estate in common with the father, subject only to the conditions before stated. The father had a right to occupy the property as a homestead. The homestead right was guaranteed by the Constitution of 1845 to families—to every family. It was a right not transmissible or inheritable to or by the heir at common law; but community property was transmissible.
Had the property in question been merely a homestead, Benjamin Eichey could not have sold it, during the lifetime of his wife, without her consent; but it being community property as well as a homestead, though he might sell his homestead right, or abandon it after the death of his wife, yet he could not sell that which was inheritable and did descend, on the death of the mother, to her children, except as already stated. He had a right to sell or dispose of his own interest in the property, but not by metes and bounds. He became and was a tenant in common with his children, with unity of possession and unity of title, and his interest in the estate was subject, alike with theirs, to community debts, if any such existed.
The judgment of the District Court is reversed, and the cause remanded.
Beversed and remanded.