Ross v. Martin , 104 Tex. 558 ( 1911 )

ON MOTION FOR REHEARING.

For the facts of this case we looked to the opinion of the chief justice of the Court of Civil Appeals and found this statement:

“Deck Martin and Charley Eogers are the grandchildren of Terrell and Seely Martin, deceased, and are their only surviving heirs. Eogers lost in the court below and did not appeal.”

I do not find in the petition for writ of error nor in the defendant in error’s reply any challenge of the facts stated in the opinion of the chief justice. The natural conclusion was that Sim died before his father, otherwise Deck could not be an heir to the grandfather.

Upon examining the statement of facts we find evidence from which a jury might find that Sim Martin was living when Terrell, his father, died. If that be true, Seely Martin was the owner of half of the land and Deck Martin the other half, therefore the sale of the land under an order of the Probate Court made in the administration of Seely Martin’s estate vested in' the purchaser only the right and interest of Seely Martin, unless the plaintiff in error or his vendor purchased in good faith without notice that the land was community property of Terrell and Seely Martin and paid a valuable consideration for it.

The judgment heretofore entered is set aside and it is ordered that the judgment of the Court of Civil Appeals be reversed and the cause remanded. It is further ordered that the plaintiff in error recover of defendant in error all costs in the Court of Civil Appeals and this court.

Reversed and remanded.

Filed December 20, 1911.