Horan v. O'Connell

ELY, J.

This is a suit by Minnie E. Hor-an, joined by her husband, C. Horan,i Jennie J. Storey, and husband, Harry Storey, Estella Helman and George Helman, as next friend of Bennette Helman, a minor, against Michael O’Connell, Daniel O’Connell, and Nora O’Connell, his wife, John O’Connell, Mike J. O’Connell, Belle C. Johnson, and Simon P. Johnson, to recover their undivided interests in and to four certain tracts of land in Matagorda county. The cause was tried upon an agreed statement of facts, and without a jury, and resulted in a judgment that the plaintiffs in error, who will be referred to herein as plaintiffs, take nothing by their suit, and that the defendants in error Michael O’Connell, Nora O’Connell, and her husband, Daniel O’Connell, named herein defendants, recover of the plaintiffs and Mike J. O’Con-nell, John O’Connell, Belle C. Johnson, and Simon P. Johnson, the land in controversy. The last four named persons had disclaimed all interest in the land.

The lands in controversy were the community property of Phillip and Mary O’Con-nell, the ancestors of the plaintiffs and defendants. On September 8, 1886, Phillip O’Connell died intestate, leaving his wife, Mary, and eight children. On September 18, 1886, seven of the children, the other being crazy and since dead, conveyed a life interest in all of the estate to their mother, Mary O’Connell, reciting that the consideration for the conveyance was the wish “to settle among ourselves without the intervention of the law and the courts of the county.” On December 7, 1887, Mary O’Connell conveyed the land to W. P. O’Connell for $1,400, and on June 18, 1892, it was conveyed by W. P. O’Connell to Michael O’Connell, the father of Mike and Dan O’Connell, defendants herein, and they are the only heirs and legatees of Michael O’Connell, deceased, and Dan O’Connell conveyed all his interest in the land to his wife, Nora. The $1,400 received by Mary O’Con-nell for the land was its reasonable value, and it was used by her in paying off an in-cumbrance on the homestead property in San Antonio, Tex.', which was a community debt. The homestead was recognized and described as being lot 30, block 4, frontage on Avenue D, in the deed made by the heirs of Phillip O’Connell to Mary O’Connell on September 18, 1886. The homestead, after the death of Mary O’Connell, was sold, and its proceeds distributed among the heirs of Phillip O’Con-nell. When Michael O’Connell, Sr., bought the property from W. P. O’Connell, on June 17, 1892, he immediately entered into actual possession of it and continued to use and enjoy the same, paying taxes thereon until the day of his death, which occurred more than ten years after he entered into possession of the land.

[1] When Phillip O’Connell died leaving community debts, his surviving wife, Mary O’Connell, had the power and authority to sell any property of the community estate and with the proceeds settle the community debts. The surviving husband or wife has the right to sell the community estate for the payment of community debts, and it would not matter that the property was sold for more than enough to pay off the debts. Johnson v. Harrison, 48 Tex. 257; Wenar v. Stenzel, 48 Tex. 484; Watkins v. Hall, 57 Tex. 1; Ashe v. Yungst, 65 Tex. 631; Sanger v. Moody, 60 Tex. 96; Walker v. Abercrombie, 61 Tex. 69; Manchaca v. Field, 62 Tex. 135; Moody v. Snoot, 78 Tex. 119, 14 S. W. 285; Jones v. Harris, 139 S. W. 69. The rule has peculiar force when the debt is against the homestead and the money realized from the sale of the other land is used to protect the homestead.

[2] It is not controverted by plaintiffs that Mary O’Connell conveyed the title to the land in fee to W. P. O’Connell, and when his vendee recorded his deed, went into possession of the land, and paid taxes on it, and used it, his possession was adverse to the claim of plaintiffs, and title by both five years and ten years limitations was perfected by him.

[3] The deed made by the heirs to their mother did not deprive her of the right to sell the community property to pay community debts. She did not relinquish any rights whatever by accepting the deed.

The judgment is affirmed.