COLLARD, Judge.
The first assignment of error is, “The court erred in finding the land in controversy to be the community property of Stephen and Jane Hyatt. ’ ’
It was in proof that during the life of Stephen Hyatt’s first wife he owned a place in Louisville. • His first wife died in 1853, and he was married again in 1854 or 1856 to Jane Cusley, while yet living on the place in Louisville, Denton County, Texas. His second wife Jane died in 1862, and he was married again to Jennie Walden (now Jennie Mc-Dougal, one of the defendants) in December, 1862. He sold the Louisville place, at what time does not appear, and in the fall of 1860, during the life of Jane, purchased the six acres and the thirty-nine and three-fourths acres of land in controversy. It is not shown what he did with
the proceeds of the Louisville place, nor is it shown that any of it went into the purchase of the land, in controversy. We see then that on this evidence the finding of the court was correct, that the property in suit was community of the second marriage with Jane Hyatt. He had not, however, fully paid for the six acres of land'at the time of his marriage with his third wife Jennie; he owed some $350 on it. The deed to it, dated the 27th day of November, 1860, was an absolute deed to him, reciting the consideration $475 as paid in cash. Mrs. McDougal, the third wife of Stephen Hyatt, testified that she had some personal separate estate when she was married to Stephen in December, 1862, and that she “let him have money with which to pay for a portion of the land in controversy;” and again she says, “after we were married the balance of $350 was paid in a pair of mules and a yoke of oxen. When I married Stephen Hyatt I had eleven head of cattle,, five head of horses, and $165 in gold, all of which was taken charge of by Stephen Hyatt and disposed of by him.” This evidence is too indefinite to. show what amount, if any, of her separate property was used to pay the balance due on the six acres of land. She had no mules and she does not show that the oxen were a part of her eleven head of cattle. On this subject J. A. Carroll testified that “Stephen Hyatt paid Potter (the vendor of Hyatt) a yoke of steers and a horse before the war for a part of the consideration of the six acres of land,” and he understood a pair of mules were paid too, but the witness said his mind was not clear about the mules, “but,” he says, “I know that the horse and oxen were paid prior to May- 3, 1861, for I started to the Confederate army on that date, and Potter went with me and rode the horse.”
C. C. Daugherty testified: “I think Stephen Hyatt paid Potter a' horse and a yoke of oxen and some mules for the six acres” and a small note on witness. “I saw Potter with the horse the last of the year 1860 or first of 1861. I was intimate with Potter and never heard of Hyatt’s owing him anything for the lot.” This evidence is not satisfactory, but it tends to show that Mrs. McDougal’s memory of the transaction may have been at fault. Her evidence does not, however, trace any of her property into a payment or part payment of the six acres.
It is insisted by appellants that inasmuch as Mrs. McDougal’s evidence shows that $350 of the purchase money of the six acres were paid after she and Hyatt were married, to that extent the land would be community of their marriage. Her evidence does not inform us .when the payment of the balance due was made or how long it was after the marriage. The law requires some degree of certainty in the proof in such a case—proof that the payment was made out of the community of such marriage; it will not be presumed from the fact that the payment was made soon after the marriage. In this respect the facts are much the same as in the case of Medlenka v. Downing, 59 Texas, 37,
where it was held that such a payment of a portion of the purchase money would not be sufficient to show that the payment was made out of the community, of the last marriage, even when paid with rents not shown to have accrued during the marriage.
We do not find that the court erred in holding that the land in controversy was the community property of Stephen Hyatt and Jane Hyatt.
Appellants assign the following error: ‘‘After finding that the land in controversy was community property of Stephen Hyatt and his second wife Jane Hyatt, and that that portion of the same which belonged to the estate of Jane Hyatt was subject to partition among the heirs, then the court erred in holding that the claim of Robert Bradford and Jesse Bradford as pleaded was not barred by the statute of limitations, Clarissa Hyatt, the wife of Robert Bradford and mother of Jesse Bradford, having been married in the year 1873, twelve years before the institution of this suit.”
Clarissa Bradford was one of the children of Stephen and Jane Hyatt, and at the death of her mother inherited one-sixth of her estate in the land, Jesse Hyatt, another child, one-sixth, and Julia, another child, one-sixth, their father taking one-half of the same as his community ; when Julia died unmarried and without issue, Stephen took by descent from her one-twelfth of the whole and Jesse and Clarissa two-sixtieths each, and Loretta, a sister of the half-blood by Stephen’s first marriage, took one-sixtieth of the whole, thus leaving in Stephen upon the death of Jane and Julia seven-twelfths of the whole, and in Jesse, Clarissa, and Loretta (Daugherty) the remaining five-twelfths of the land. The land was never the homestead of Jane and Stephen Hyatt. After the death of Stephen Hyatt, he having previously married Jennie Waldon (now Jennie McDougal), by whom he had two children, John and George, in the administration of his estate by one Venters, in 1868, the Probate Court of Denton County set apart the land in controversy to his surviving wife Jennie Hyatt (now McDougal) and his minor children, Clarissa Hyatt, Jesse Hyatt, John Hyatt, and George Hyatt, “the family then residing on the land.” The estate of Stephen Hyatt was insolvent. The record does not show for what purpose the land was so set apart, but inasmuch as the family were living on the land at the time of the order it might be presumed that it was done to secure a homestead for them. The evidence of this order was by parol, the records of the court having been destroyed by fire. At this time Clarissa owned by inheritance from her mother Jane Hyatt, deceased, and from her deceased sister Julia one-fifth undivided interest in the whole of the land, independently of the interest of her father. The seven-twelfths of the land owned by Stephen Hyatt at his death could be protected as a homestead for the surviving wife and his minor children by the second and the third marriage, but we do not think the Probate Court had the power to set aside for such homestead purposes the one-
fifth of Clarissa derived from her mother’s portion of the community-If he had ever acquired any homestead interest in Jane’s portion of the community after hqr death it was extinguished by his death, and it could not by descent or order of the court in his administration be applied to homestead purposes for the benefit of the third wife and family. To the extent of her title by virtue of succeeding- to .the homestead right in the seven-twfelfths belonging to Stephen at his death she (Mrs.
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COLLARD, Judge.
The first assignment of error is, “The court erred in finding the land in controversy to be the community property of Stephen and Jane Hyatt. ’ ’
It was in proof that during the life of Stephen Hyatt’s first wife he owned a place in Louisville. • His first wife died in 1853, and he was married again in 1854 or 1856 to Jane Cusley, while yet living on the place in Louisville, Denton County, Texas. His second wife Jane died in 1862, and he was married again to Jennie Walden (now Jennie Mc-Dougal, one of the defendants) in December, 1862. He sold the Louisville place, at what time does not appear, and in the fall of 1860, during the life of Jane, purchased the six acres and the thirty-nine and three-fourths acres of land in controversy. It is not shown what he did with
the proceeds of the Louisville place, nor is it shown that any of it went into the purchase of the land, in controversy. We see then that on this evidence the finding of the court was correct, that the property in suit was community of the second marriage with Jane Hyatt. He had not, however, fully paid for the six acres of land'at the time of his marriage with his third wife Jennie; he owed some $350 on it. The deed to it, dated the 27th day of November, 1860, was an absolute deed to him, reciting the consideration $475 as paid in cash. Mrs. McDougal, the third wife of Stephen Hyatt, testified that she had some personal separate estate when she was married to Stephen in December, 1862, and that she “let him have money with which to pay for a portion of the land in controversy;” and again she says, “after we were married the balance of $350 was paid in a pair of mules and a yoke of oxen. When I married Stephen Hyatt I had eleven head of cattle,, five head of horses, and $165 in gold, all of which was taken charge of by Stephen Hyatt and disposed of by him.” This evidence is too indefinite to. show what amount, if any, of her separate property was used to pay the balance due on the six acres of land. She had no mules and she does not show that the oxen were a part of her eleven head of cattle. On this subject J. A. Carroll testified that “Stephen Hyatt paid Potter (the vendor of Hyatt) a yoke of steers and a horse before the war for a part of the consideration of the six acres of land,” and he understood a pair of mules were paid too, but the witness said his mind was not clear about the mules, “but,” he says, “I know that the horse and oxen were paid prior to May- 3, 1861, for I started to the Confederate army on that date, and Potter went with me and rode the horse.”
C. C. Daugherty testified: “I think Stephen Hyatt paid Potter a' horse and a yoke of oxen and some mules for the six acres” and a small note on witness. “I saw Potter with the horse the last of the year 1860 or first of 1861. I was intimate with Potter and never heard of Hyatt’s owing him anything for the lot.” This evidence is not satisfactory, but it tends to show that Mrs. McDougal’s memory of the transaction may have been at fault. Her evidence does not, however, trace any of her property into a payment or part payment of the six acres.
It is insisted by appellants that inasmuch as Mrs. McDougal’s evidence shows that $350 of the purchase money of the six acres were paid after she and Hyatt were married, to that extent the land would be community of their marriage. Her evidence does not inform us .when the payment of the balance due was made or how long it was after the marriage. The law requires some degree of certainty in the proof in such a case—proof that the payment was made out of the community of such marriage; it will not be presumed from the fact that the payment was made soon after the marriage. In this respect the facts are much the same as in the case of Medlenka v. Downing, 59 Texas, 37,
where it was held that such a payment of a portion of the purchase money would not be sufficient to show that the payment was made out of the community, of the last marriage, even when paid with rents not shown to have accrued during the marriage.
We do not find that the court erred in holding that the land in controversy was the community property of Stephen Hyatt and Jane Hyatt.
Appellants assign the following error: ‘‘After finding that the land in controversy was community property of Stephen Hyatt and his second wife Jane Hyatt, and that that portion of the same which belonged to the estate of Jane Hyatt was subject to partition among the heirs, then the court erred in holding that the claim of Robert Bradford and Jesse Bradford as pleaded was not barred by the statute of limitations, Clarissa Hyatt, the wife of Robert Bradford and mother of Jesse Bradford, having been married in the year 1873, twelve years before the institution of this suit.”
Clarissa Bradford was one of the children of Stephen and Jane Hyatt, and at the death of her mother inherited one-sixth of her estate in the land, Jesse Hyatt, another child, one-sixth, and Julia, another child, one-sixth, their father taking one-half of the same as his community ; when Julia died unmarried and without issue, Stephen took by descent from her one-twelfth of the whole and Jesse and Clarissa two-sixtieths each, and Loretta, a sister of the half-blood by Stephen’s first marriage, took one-sixtieth of the whole, thus leaving in Stephen upon the death of Jane and Julia seven-twelfths of the whole, and in Jesse, Clarissa, and Loretta (Daugherty) the remaining five-twelfths of the land. The land was never the homestead of Jane and Stephen Hyatt. After the death of Stephen Hyatt, he having previously married Jennie Waldon (now Jennie McDougal), by whom he had two children, John and George, in the administration of his estate by one Venters, in 1868, the Probate Court of Denton County set apart the land in controversy to his surviving wife Jennie Hyatt (now McDougal) and his minor children, Clarissa Hyatt, Jesse Hyatt, John Hyatt, and George Hyatt, “the family then residing on the land.” The estate of Stephen Hyatt was insolvent. The record does not show for what purpose the land was so set apart, but inasmuch as the family were living on the land at the time of the order it might be presumed that it was done to secure a homestead for them. The evidence of this order was by parol, the records of the court having been destroyed by fire. At this time Clarissa owned by inheritance from her mother Jane Hyatt, deceased, and from her deceased sister Julia one-fifth undivided interest in the whole of the land, independently of the interest of her father. The seven-twelfths of the land owned by Stephen Hyatt at his death could be protected as a homestead for the surviving wife and his minor children by the second and the third marriage, but we do not think the Probate Court had the power to set aside for such homestead purposes the one-
fifth of Clarissa derived from her mother’s portion of the community-If he had ever acquired any homestead interest in Jane’s portion of the community after hqr death it was extinguished by his death, and it could not by descent or order of the court in his administration be applied to homestead purposes for the benefit of the third wife and family. To the extent of her title by virtue of succeeding- to .the homestead right in the seven-twfelfths belonging to Stephen at his death she (Mrs. McDougal) was a tenant in common with Clarissa and Jesse Hyatt as to their portion derived from their mother, and she could not avail herself of the statute of limitations against them nor against Loretta, had they all been
sui
juris, until she had repudiated their rights. .The assignment of error only claims limitation against the heirs of Clarissa, and we need not proceed farther than the discussion of her rights. Heither she norher heirs were barred. Gilkey v. Peeler, 22 Texas, 664.
Appellants contend that by another assignment of error that “after the court had found that the land was set apart by the County Court of Denton County to Jennie Hyatt and the minor heirs of Stephen Hyatt, the court erred in allowing the judgment attacked collaterally.” -The court’s action'in declaring that the five-twelfths of the land de- - scending to the heirs of Jane Hyatt at her death was subject to parti- . tion was correct. Mrs. McDougal and her children could not acquire a homestead in such interest, and the Probate Court in the administration of Stephen Hyatt’s estate had no power to so decree. The decree to. that extent was void. Bradley v. Love, 60 Texas, 473; Shepperd v. White, 16 Texas, 163. The interest of the heirs inherited from Jane Hyatt as well as the interest of Loretta Daugherty derived from the same source by inheritance from her half-sister was subject to partition upon the death of their father; and so far the judgment of the lower court was correct in disregarding the order of the Probate Court setting-all the land aside as a homestead.
It is claimed by appellants that the order of the Probate Court vested the absolute title to the homestead in the widow of Stephen Hyatt and his minor children named in the order, and the court .erred in not so finding. We think this assignment should be sustained as to "the seven-twelfths of the land owned by Stephen Hyatt at his death, Stephen Hyatt died in 1867, at which time he with his wife and minor children were occupying the land as a homestead; the order. mentioned was made in-1868, and it was shown in terms that his estate was insolvent; the court so found, and neither the appellants nor the appellees question the finding by any assignment of error, though'there was evidence tending to show that his heirs received property and money from his estate. The finding not being questioned, we will assume it to be correct. Hnder the law as it existed at the time of his death and at the. time of the order setting aside the homestead to his widow and minor children, the estate being insolvent, the beneficiaries of the
homestead took the absolute title to the same, free from distribution among others interested in the estate. Green v. Crow, 17 Texas, 189; Sossaman v. Powell, 21 Texas, 665; Scott v. Cunningham, 60 Texas, 566; Childers v. Henderson, 76 Texas, 664.
According to these authorities, Hyatt’s estate being insolvent, the title to the seven-twelfths of the land belonging to him at his death vested absolutely in Jennie Hyatt, his surviving wife, and his minor children, Jesse, Clarissa, John, and George Hyatt. Ho more than such seven-twelfths could só vest, as we have before seen. This homestead interest could not be partitioned among the joint owners so long as it continued to be the homestead of Mrs. McDougal. The title so acquired to the homestead was and is a statutory title distinct from inheritance. Its origin is in the statute and passed to the beneficiaries in accordance therewith—that is, one undivided half to the surviving wife Jennie Hyatt (now Mrs. McDougal) and the other half to the minors named in the order of the Probate Court, share and share alike. This is a result of the statute in force at the time and the construction placed upon it by the case of Green v. Crow and other cases cited above. Pasch. Dig., art. 1305. Loretta Daugherty was not a member of the family and was not named in the order, and hence under the rule she could not take any interest in the title to the homestead.
The present Constitution changes the rule so that the homestead vests in the heirs in like manner as other real property, and is governed by the same laws of descent and distribution,, but can not be partitioned so long as the surviving husband or wife elects to use it as a homestead, or so long as the guardian of the minor children of the deceased may be permitted to so use it under order of the proper court. Const., art. 16, sec. 52.
This being our view of the rights of the parties, other assignments of error become unimportant. There is fundamental error in the judgment of the lower court which we must notice.
Jesse Hyatt and Clarissa Hyatt inherited from their mother and sister Julia one-fifth each of the whole of the land, which, as we have seen, may be partitioned, and by virtue of the homestead law they would be entitled to one-eighth of one-half of the seven-twelfths set aside out of Stephen Hyatt’s estate as a homestead, and another small interest by inheritance from their half-brother' George,' deceased. The interest in the homestead, however, is not subject to partition so long as Mrs. Mc-Dougal should choose to use same as a homestead. The one-fifth belonging to each coming from their mother was subject to partition. Mrs. McDougal, pending the suit, bought the title of Jesse Hyatt, as was admitted on the trial,, out of which the court below set aside a sufficiency to make good her deeds to parties to whom she had sold specific tracts. The court adjudged to Robert H. Bradford a.nd Jesse Bradford, surviving husband and son of Clarissa, one-fifth of the whole of the land
inherited from Jane Hyatt and Julia, which was ordered to- be partitioned, and also declared in them an inheritable interest from Stephen Hyatt in the seven-twelfths set aside as a homestead, the last not to be partitioned so long as it was used as a homestead. They really acquired no interest by their (or rather Clarissa’s) inheriting from her deceased father, as we have before seen. Her interest in the homestead was not acquired in this way, and was. not so much as the court’s judgment made it. •
The petition Claimed title in plaintiff’s to but T6¥2¥ in the land for the two shares of Jesse and Clarissa Hyatt, which would not amount to one-fifth for each; the title to the residue, or of the whole, was conceded to be- in the defendants by the petition. Ho more of the land could be ^warded by the judgment to plaintiffs than was claimed and prayed for in the petition. The judgment in favor of the plaintiffs Bradfords for even the one-fifth would not correspond with the petition; it was too much. There was fundamental error in the judgment.
Because of the errors pointed out, we conclude the judgment ought to be reversed and the cause remapded.
Reversed and remanded.
Adopted April 21, 1891.