Davis v. McCartney (64 Tex. 584, 1885)

Robertson, Associate Justice.

There was no conflict in the evidence and no substantial controversy in the court below as to the material facts in this case. The testimony showed that the land in controversy was the community property of Wm. J. and Sallie Davis, and that at the date of the former’s death on August 16, 1876, it was used and occupied as a homestead; that the plaintiff at that time was a minor and the only child of Wm. J. Davis by a former marriage; that the community estate, including the homestead, did not exceed in value about the sum of $2,500, whilst the community debts amounted to about $4,000; that the survivor of the community, Sallie Davis, sold all the community property and used the proceeds in the payment of community debts, without filing an inventory and qualifying as survivor under the statute, and that she sold the land in controversy for the laudable purpose already stated after she married a second time. Upon these facts clearly proven, the court below charged the jury that the plaintiff, who sued for his father’s community interest in the late homestead, could not recover if the sale was made and the proceeds used to pay debts. In accordance with the facts and this charge, a verdict and judgment were rendered for the defendants, who were the vendees of Mrs. Davis, and the plaintiff appealed. The correctness of this result is challenged by the appellant, mainly, upon two propositions:

First. That Mrs. Davis had no right to dispose of appellant’s half interest in the community homestead for the purpose of paying community debts; and

Second. That her power over appellant’s half of the community lands ceased with her second marriage.

Reither the constitution of 1876 nor the act of the legislature of August 9 of the same year, which were in force at the date of the death of William J. Davis, and at the date of the sale by Mrs. Davis of the land in controversy to the appellees, recognize any right in a creditor of a deceased person, if a widow or minor child survives him, to have the homestead of the family subjected to the payment of his debt. The constitution provides that, subject to the right of the widow and minor child or children to occupy and use the homestead as an entirety, it shall descend and vest in the heirs of the decedent as other real property. The legislative act referred to provides that the homestead and other exempt property shall be set aside to the