E. W. Millsap v. W. F. Peoples et al., 116 Tex. 180

Mr. Judge SPEER delivered the opinion of the Commission of Appeals,

Section B. The following certificate is before us from the Eleventh Supreme Judicial District: “At a former day of the present term, the above styled and numbered cause was affirmed, thereafter motion for rehearing was overruled. An opinion was handed down overruling the motion for rehearing, in which opinion additional matters urged in the motion for rehearing were discussed for the first time. Thereafter the appellant sought and obtained leave to file second motion for rehearing, which is now pending.

The proper decision of the case appears to this Court to be a question of considerable difficulty and on account of what appears to us to be some inconsistencies in the cases bearing on the question decided and because we are unable to find where the precise point has ever been directly involved in an appeal in this State, we have decided to certify to your honors the question hereinafter propounded. The facts are undisputed that the property in controversy was, prior to R. L. Hockley’s death, the community property of himself and wife, Lou Hockley.

After Hockley’s death and before any administration was had upon his estate, his said surviving wife, Lou Hockley, executed her personal note for a community debt owing by said Hockley at the time of his death. Subsequent to the execution of this note, Mrs. Lockley duly qualified as community administrator or survivor. Thereafter the holder of the note so given by Mrs. Lockley brought suit against her in her individual capacity only and obtained an individual judgment against her.

Execution duly issued on this judgment and was levied upon the property in controversy and an execution sale followed purporting to convey the entire property as the property of Mrs. Lockley. The appellant purchased at said execution sale and then brought this suit in trespass to try title against appellee, who claimed under á .deed from the surviving children of R. L. Lockley. On the trial the appellant proved that the judgment against Mrs. Lockley was rendered for a community debt and after she had qualified. “The trial court held that only the individual interest of Mrs.

Lockley passed under the execution sale, which judgment was affirmed as stated. There is but one question arising under the facts and the pleading and that is: Whether a sale under execution issued on a judgment against the surviving wife individually for a community debt, which judgment was rendered after she had qualified as community survivor, passes the entire title of the community to the property levied upon, or whether such sale passes only the individual interest of the survivor against whom such judgment is rendered ?” The sale under execution against Mrs.

Lockley individually passed only her title to the property. It did not affect the interest of others in the same, although she was at the date of the judgment the duly qualified community survivor. The survivor as an individual is a stranger to the estate. As an individual she is a separate juristic person from the legal representative of the estate. Either may be sued according to the liability asserted, and each must be sued in the capacity in which she is liable. Speer’s Marital Rights, Sec. 586.

The representative of the estate not having been sued, the estate was not, of course, before the court, and the judgment being against Mrs. Lockley individually, only property belonging to her individually could be taken in satisfaction. The sale did not purport to convey anything more. The case is not helped by any character of presumption as to the estate intended to be conveyed. In voluntary sales a presumption is sometimes indulged in aid of the description or identity of the property conveyed, based upon the supposed intention of the grantor.

But this rule has no application to involuntary sales where the owner intends nothing with respect to the matter. The law in such a case acts in hostility to the owner and no presumptions of intention can be summoned in aid or enlargement of the otherwise defective or insufficient instrument. Herman v. Likens, 90 Texas, 448, 39 S. W., 282. We recommend the question be answered as indicated. The opinion of the Commission of Appeals answering the certified question is adopted and ordered certified to the Court of Civil Appeals. C. M. Cureton, Chief Justice.