John McAlister, Executor, et al. v. Farley, Jury & Co., 39 Tex. 552

Walker, J. Two grounds of error are insisted on in this case. 1. That the court erred in refusing to hear evidence going to show that the land last purchased after the death of the mother of the appellants was bought and paid for «with money belonging to the community estate.

This •evidence was material; and if the fact were proven conclusively, then it was error in the court to hold that the ¡land was the sole and separate property of the husband. :So far as community funds were used in the purchase of 'this land, it was community property, and Alexander MeAlister was bat a tenant in common with his children. (Neil v.

Keese, 5 Texas, 23.) This is but the common doctrine of trusts: where one purchases with funds belonging to another and takes the title to himself, he holds it in trust for him who furnished the money; and where but part of the money is furnished, the equity attaches pro tanto. (Art. 4642, Pas. Dig.) We will treat the second point urged in connection with other questions involved in the case.

After much consideration we are of opinion that the act of August 15, 1870, would not entitle the appellants to a .homestead out of their father’s separate estate, if they had a homestead fixed and determined in the lifetime of the father on the community estate.

The law contemplates but one homestead to a family, and we do not think it was the intention of the Legislature to allow the surviving constituents of a family, where the homestead has been fixed upon community property, of which such constituents may be part owners, on the death of the head of the family to change the homestead so as to take the entire allowance out of the share of the last community holder, if it should operate to the prejudice of creditors or purchasers.

They are entitled to what the law protected to the head ■of the family from forced sale, viz., the homestead ; and though this homestead belonged in part to the appellants in this case by inheritance from their mother, they could not during his lifetime have deprived their father of his homestead by partition or sale. It was this homestead which the law protected, and it is this which must go to the surviving constituents of the family. But another question arises in this case.

Upon the theory that Alexander McAlister and the appellants were tenants in common in the whole of the lands described in -the petition, then the father could not have sold any given part of the land by metes and bounds to John Mc-Alister. The lands must first be partitioned; and after the home-' stead is set apart to the children, John McAlister 'must have his land out of the share which would have belonged-to Alexander McAlister.

It is, however, a well known principle of equity that where one tenant in common has attempted to sell his interest in an estate by metes and bounds, equity will assign him the same on partition, if it can be done without injury to the shares of the co-tenants, and especially is this the case where the purchaser of the one interest has made improvements in good faith.

This, then, sufficiently explains the law of this case : if all the lands are community property, the children are entitled to their mother’s interest in it; if the homestead was fixed upon community property, they hold it as fixed and established by their father. In other words, the homestead in that case will be taken out of the community estate, and the remainder will be partitioned.

But if there was no homestead fixed and established during the lifetime of the father, then under the act of August 15, 1870, the children will be entitled to a homestead of two hundred acres out of the individual share of their father. Should it be found that this opinion is in conflict with Ragland v. Rogers, 34 Texas, 622; Blair v. Thorpe, 33 Texas, 49; or Sossaman v. Powell, 21 Texas, 665, those cases must be considered modified so far as to conform to this case. We do not think, however, the principles decided are in conflict. It is true a majority of the court is understood to have decided in Ragland v.

Rogers, that “the widow of a decedent is not compelled to accept as the homestead the identical premises which were the homestead before her husband’s death; she has the right to select out of the entire estate the homestead to be set apart for herself and children.” This doctrine should be understood to apply only where the rights of creditors and purchasers from the husband are not prejudiced by such a change of the homestead locus, or where the homestead occupied before the death of the husband does not include the full allowance.

The view we have taken of this case involves the necessity of reversing and remanding, which is accordingly done. Reversed and rewarded.