David Yancy et al. v. W. C. Batte (next Friend) et al., 48 Tex. 46

Gould, Associate Justice. Mary A. Grigg, Richard B. Grigg, and John H. Grigg, minors, brought this suit, by their next friend, W. C. Batte, to recover and have partitioned an undivided half of 1,000 acres of land, claiming that it was the community property of their deceased parents, H. C. and Mary A. Grigg, and that at the death of their mother, in 1858, they inherited her community interest.

They allege an attempted conveyance, in 1862, by their father, joined by a second wife, Rebecca, to David Yancy, Sr., of the entire tract, and that the other defendants, the sons of David Yancy, claim parts of the tract through said David.

The defenses relied on were purchase and payment and valuable improvements, in good faith, and that the plaintiffs had inherited from the estate of their father assets in excess of their interest in the land claimed, and that by reason thereof, and of the warranty contained in the conveyance of their father to David Yancy, Sr., plaintiffs were precluded from recovering until they had refunded to said David one-half the purchase-money paid by him, with interest.

On the trial, the court submitted numerous special issues to the jury, and from their findings it results, that the land was the community property of the first marriage; that the mother died in 1858, and the father, after contracting the second marriage and selling the land, as alleged, died in 1864, leaving, at his death, on hand, of property acquired during coverture of his first, wife, ten negroes, valued at §2,000, and cattle, horses, &c., of the value of §970; of property of the last community, cotton and hogs, of the value of §3,920; and of the separate property of H. C.

Grigg, three negro men, valued at §1,000 each. They find that no debts of the estate of H. C. Grigg have been paid since his death, and that only §200 had been probated against his estate. In response to the issue, (twenty-first,) “ What amount of the separate or community estate of H. C.

Grigg have his children actually received from his estate since his death, and how much of this came from his estate acquired after the marriage to the mother of said children and before her death ?” the answer is, “ We find plaintiffs in this cause have received nothing from their father or mother’s estate.” The issue was submitted separately, as to each of the defendants, whether he had made valuable improvements, in good faith; and the finding is, that each defendant has made improvements, specifying the improvements and fixing their value, which is, in each case and in the aggregate, in excess of the amount of rent, also found.

On these findings, the court entered up judgment, that the plaintiffs recover of the defendants an undivided one-half interest in the land sued for, and that their title to the same be established, decreeing that the tract of land claimed by each defendant be partitioned between the plaintiffs and the respective defendants according to quality and quantity, allotting to the plaintiffs one-half and to the defendants the remainder of said land, and allotting to each defendant the improvements made thereon by him, (specifying the improvements of each,) if the same could be done “ in justice to the rights of plaintiffs in said land.” After naming the commissioners, directing them to report at the ensuing term of court, and instructing them that the rights of the plaintiff's and defendants, to the improvements made prior to the sale by H.

C. Grigg, were equal, the decree proceeds: “ That if said commissioners shall set apart to the plaintiffs any part of the improvements made by either of the defendants, that such part shall be reported to this court, for its further orders.” There was a motion for new trial, and a motion to reform the judgment rendered, both of which were overruled. The first error assigned, is that the findings of the jury were insufficient to support the judgment 'rendered, or any judgment.

The findings established that the land was acquired during the marriage of the parents of plaintiffs, and was on hand, undisposed of, at the death of their mother. This was sufficient to entitle plaintiffs to recover, unless the findings on other issues established some equitable defense. Such is believed to have been the doctrine recognized in this court from so early a period, and in so many cases, that we do not regard it as now open to controversy. (Duncan v. Rawls, 16 Tex., 501; Parker v. Parker, 10 Tex., 96; Robinson v. McDonald, 11 Tex., 390; Jones v. Jones, 15 Tex., 143; Wilkinson v.

Wilkinson, 20 Tex., 244; Thompson v. Cragg, 24 Tex., 600 ; Magee v. Rice, 37 Tex., 501; Primm v. Barton, 18 Tex., 206; Monroe v. Leigh, 15 Tex., 519. But, instead of following the assignment of errors, it will suffice to notice the two questions which are alone discussed in the brief of appellants’ counsel, both of which arise out of other findings of the jury.

It is claimed that the jury found improvements, in good faith, by defendants largely in excess of rents, and that, under the statute, the defendants were entitled to pay for their improvements,.before their possession of any part of the land could be disturbed. (Paschal’s Dig., art. 5300.) The objection urged, is not that it is impracticable to make the partition so as to give defendants their improvements, nor that the judgment is incomplete in failing to prescribe distinctly the rule to be applied in case that some of the improvements of defendants had to be allotted to plaintiffs.

The position taken is, that the statute applies just as it does in cases where the plaintiff recovers the entire tract. But it seems too plain for argument, that the statute was designed to protect the defendant from losing his improvements without compensation. It was never designed to entitle defendants to pay for improvements, and, at the same time, to retain them; nor was it designed to give defendants the right to object that the land be so divided, if practicable, as to give to them the part which they have improved.

If such a partition be impracticable, and it be necessary to dispossess the defendant, the statute would protect him. But there is nothing in the statute to prevent the partition "being made, as in other cases of partition between joint owners. The decree of the court follows the course marked out by Chief Justice Hemphill in a similar case, and is not erroneous in the point complained of. (Robinson v.

McDonald, 11 Tex., 388.) It is claimed that the findings of the jury show that the plaintiffs inherited property from the estate of their father in excess of the one-half of the purchase-money, with interest, paid to their father for the land by David Yancy, Sr., and that, by reason of that fact and the warranty of their father, they were precluded from recovering the land until they had repaid one-half the purchase-money, with interest. It is contended, that as the findings of the jury establish that H. C.

Grigg, at his death, left separate and community property to a considerable amount, and that this property had not been appropriated to pay debts of the estate, only $200 of debt being probated, that it necessarily followed that the plaintiffs had inherited a considerable amount from said estate. This view of the findings disregards the further finding, that the plaintiffs actually received nothing from the estate of either father or mother,—an issue, it is said, which should not have been submitted to the jury.

The presumption which might arise from the other findings, is rebutted by the finding that nothing was received,—an issue, under the facts of the case, proper to be passed upon.

In this State, it is true that the entire estate vests at once in the heir, on the death of the ancestor; but it is also true, that administration may intervene, and the estate having been absorbed in the course of administration, may never reach his hands. (Paschal’s Dig., art. 5488.) So, as in this case, the property on hand at the ancestor’s death may be wasted or destroyed by the fortunes of war, or appropriated, without administration, to payment of just debts, and never reach the hands of the heir, so as to become assets chargeable to him.

We think it clear, that, in this State, the responsibility of the heir for the debt or covenant of his ancestor is to he measured, not by the amount of the ancestor’s estate which vested in him, but by the amount received. (Montgomery v. Culton, 18 Tex., 749; The State v. Lewellyen, 25 Tex., 797; Holman v. Criswell, 15 Tex., 399; Ansley v. Baker, 14 Tex., 607; Paschal’s Dig., art. 1332.) At common law, the liability of the heir did not exceed the lands inherited. (2 Blackst., 243; Rawle on Cov., 579.) The issues submitted were not, perhaps, exhaustive of the case.

Indeed, on the question last discussed, no issue was submitted as to the fact of warranty,—a fact patent on the face of the deed in evidence, it is true, but one which should either have been found by the jury, or agreed upon by the parties. But if there were other issues which should have been submitted, it does not appear that any were suggested; and if the evidence seems insufficient to support the findings on some immaterial points, that constituted no good reason for granting a new trial. Because we find no material error, the judgment is affirmed. Affirmed.