Ford v. Cowan

Watts, J. Com. App.

By an instrument in writing signed by the attorneys of plaintiffs in error, and defendant in error, I. M. Cowan, on file in this cause, it has been agreed that the judgment of the court below, as to the latter, shall be in all things affirmed. In accordance with that agreement we respectfully recommend the affirmance of the judgment as to the defendant in error, I. M. Cowan.

There is nothing in the objection to the ruling of the court holding defendant in error, Hayter, a competent witness in the cause. From the statement of facts it appears that the only objection urged against his testifying was that being a party to the suit made him an incompetent witness.

By statute parties to suits are made competent witnesses. R. S., art. 2246.

But it is now claimed that the witness should not have been permitted to testify as to transactions had with Thomas, who was then dead. It is a sufficient reply to this objection to remark that no objection was made to his evidence upon this ground in the court below.

Here it appears that Mrs. Thomas, the mother of plaintiffs in error, and through whose community right they claim, died October 28, 1857, and that William Thomas, their father, qualified as survivor in community, by filing an inventory and appraisement of the common property of himself and deceased wife, February 19, 1870, and which was approved by the county judge March 28,1870. This inventory and appraisement was in substantial compliance with the statute then in force. But it is claimed that, owing to the great lapse of time between the death of Mrs. Thomas and the filing of the inventory, that the attempted qualification as survivor in community was void, and conferred no right or authority to sell and convey the common property.

Considering the suspension of the statute of limitations by reason of the civil war, it will be seen that Thomas might have then opened a valid administration upon the estate of his deceased wife. ‘ And there is no valid objection perceived why he could not qualify as survivor in community within the time that a valid administration might be opened upon the estate.

While it appears from the evidence that the preliminaries had been agreed to between Thomas and Hayter, as to the sale and conveyance of the land to the latter, that he refused to consummate the purchase until Thomas qualified as survivor in community, after which Thomas conveyed the land in controversy to Hayter.

This transaction does not come within the rule announced in Griffin v. West Ford, 60 Tex., 503. There the qualification as survivor in community was subsequent to the sale and conveyance, and it was held that such subsequent qualification would give no additional virtue to the conveyance previously made. But it seems that this qualification was for the purpose of enabling Thomas to make a valid conveyance of the land in controversy to Hay ter.

Our conclusion is that there is no error in the judgment, and that it ought to be affirmed.

Affirmed.

[Opinion adopted May 5, 1885.]