Shannon v. Gray

59 Tex. 251, 1 Tex. L. R. 967, 1883 Tex. LEXIS 144

• Court: Texas Supreme Court
• Decided: April 17, 1883
• Docket: Case No. 4037
• Status: Published

Opinion

Watts, J. Com. App. —

Appellant objects to the judgment because, at the death of Mrs. Shannon in 1863, the homestead right vested in the minor child, and as Shannon and wife were insolvent the child took the fee to the land.

In Brewer v. Wall, 23 Tex., 589, the court said: “This court has decided, and the constitution clearly contemplates, that the homestead right of the wife does not survive after her death, so as to vest a homestead right in the children of the marriage. In other words, after the death of the wife, the husband may sell the homestead, if it be his separate property, the children having no interest in the homestead which restricts the father’s right to sell.” While in Johnson v. Taylor, 43 Tex., 122, it said: “The children have no' interest in the homestead, as such, by virtue of the homestead rights of the deceased parent. If it was community property of their parents, they inherit the share of the deceased parent, just as they inherit other community property.” This doctrine is also fully approved in the case of Grothaus v. De Lopez, 57 Tex., 670.

These authorities answer this objection to the judgment.

Then the child inherited the community interest of the mother,, not, however, as a homestead, but as any other community property, subject to the deed of trust executed by his. parents prior to the death of the mother.

It is well settled that, after the death of the wife, the husband could have sold the property, for the purpose of paying this community debt, without first qualifying as survivor in community. It is equally well settled that his administrator, if he had died, would have bad the right to control and administer the property, for the purpose of paying the community debts.

When the father went into bankruptcy, and by his schedule assigned this land to the assignee, burdened with the lien, and for the purpose of paying the debt, the title passed to the assignee and thence to the purchaser by the assignee’s conveyance. This bankruptcy in its effect is but a mode of administering property for the purpose of paying a debt with which it is charged. The property -had long before that time lost its homestead character by its abandonment as such. John v. Battle, 58 Tex., 591. If, however, we should be mistaken in this view of the law, it will not be disputed that the sale and conveyance of the land by Shannon for the purpose of paying the community debt was an effectual-bar to a recovery of the land or any part of it by appellant. Johnson v. Harrison, 48 Tex., 257.

There is no error in the judgment, and it ought to be affirmed.

Affirmed;

[Opinion approved April 17, 1883.]