Wingo v. Rudder , 103 Tex. 150 ( 1910 )

This is a certified question from the Court of Civil Appeals of the Third Supreme Judicial District.

A brief statement of the case and of the question is as follows:

Nancy Mitchell, the mother of the plaintiffs, then being twelve or thirteen years old, in April, 1869, ran away from her father's home in Montgomery County, Alabama, and was clandestinely married to one Hale Windham. They lived together two or three days, when she returned to her father's home and never lived with him again, nor is there any evidence that he ever attempted to get her to come back and to live with him. She was sent to school in La Grange, Georgia, and in that State some time in 1872, she was married to Sam D. Rudder, who is one of the defendants in this suit. Sam D. and Nancy some time after their marriage went to Alabama where they lived a few months and then in the year 1873 or 1874 came to Milam County, Texas, where they purchased a tract of land of seventy-six and one-fourth acres. In 1876 Hale Windham procured a decree of divorce annulling the bonds of matrimony between himself and Nancy Windham. Nancy died September 9, 1887. During all the time Sam D. and Nancy Rudder lived together they were reputed to be husband and wife and they believed themselves to be lawfully married. They left six children surviving them, one of whom has died since the death of his mother.

After the death of his reputed wife, Sam D. Rudder made application to the County Court of Milam County for authority as survivor to administer the community estate of himself and of his deceased wife, gave bond as required by law in the sum of $1000 with J.F. Wingo, H.F. Inglehart and W.J. Brewer as his sureties. Subsequently to his acquiring the right to administer the community estate of himself and of his deceased wife, to wit, on the 14th day of October, 1887, he sold the land above mentioned to W.A. Wingo for $1000 in cash. The trial court estimated that the plaintiffs were entitled to a judgment for $458.34, with interest from the date of the sale to April 11, 1892, at eight percent per annum and from the latter date to the date of the trial at six percent per annum. But that since the suit was but for $1000 and since the bond was for that sum only, judgment was actually given for $1000 only.

The question certified is, was appellees' demand barred by the statute of limitation?

If this were a question as to the recovery of their interest in the land which was sold we think we would have a difficult case. As long as the survivor holds the community estate and does no act in repudiation of the interests of the heirs of the deceased spouse, he or she holds as tenant in common, and the rule is that the statute of limitation does not run in favor of a tenant in common holding the common property until he has done some act repudiating his relation with his cotenants. Such is the case of Taylor v. Taylor, 6 Texas Civ. App. 496[6 Tex. Civ. App. 496]. In Miller v. Miller, 34 Texas Civ. App. 367[34 Tex. Civ. App. 367], is one very much like the present case. There a father of the plaintiffs owned a two hundred acre tract of land which was conceded to be community property between the father and their deceased mother. Their right to an interest in that tract was not contested and they had judgment therefor. But there was testimony tending to show that at the time of Mrs. Miller's death there was a considerable sum of money and other personal property on hand and in possession of the father which in a few years after the death of his wife he converted to his own use. As to a recovery for this it was held that the plaintiffs were barred by the statute of limitations and a writ of error was refused by this court.

In this case the father as survivor of the community estate sold the land for $1000, not so far as the evidence discloses to pay debts. There was no reason why he should not have paid one-half of it to his wife's heirs. He had no defense for an action for a recovery of that half. Why the wife's heirs should not have sued him we do not see; and therefore we see no good reason why the statute of limitations did not apply.

We answer that in our opinion the action was barred by the statute of limitation.