Mary Hair et al. v. John E. Wood et al., 58 Tex. 77

Watts, J. Com. App. In the suit of Elmira Barnes v. Scogin et al., Mrs. Barnes sued as the surviving wife of Frank Barnes, deceased, and as the head of a family consisting of herself and her two minor children, the appellants in this case. It would seem that they were represented in that suit by their mother, and that her recovery would inure to their benefit, to the extent of their rights in the subject matter of the litigation, and in my opinion the court erred in holding the contrary. Appellee John E. Wood purchased the property pending that suit.

It was not necessary, to make him a party defendant; the judgment therein rendered against Scogin as effectually bound him as if he had been made a party defendant in the suit. Punchard v. Delk, 55 Tex., 305; Burford v. Rosenfield, 37 Tex., 42; Briscoe v. Bronaugh, 1 Tex., 326. Without undertaking to determine whether or not the judgment rendered by the supreme court in the case of Elmira Barnes v.

Scogin was in all things correct, if is sufficient for the purpose of this case that the court had jurisdiction of that case, and that there is nothing disclosed by the record that would warrant the conclusion that the judgment was void. On the contrary, it must be considered as a final, definitive and subsisting judgment of a court of competent jurisdiction, binding alike upon the parties and those in privity with them.

Hnder the decisions of the supreme court, the conveyance of the homestead by the husband without the consent of the wife was, as to her, inoperative, but that she alone could assert her rights against such a conveyance. Here, after the death of her husband, the wife asserted that the conveyance was invalid, and sought to have it, as well as the subsequent conveyances, canceled and held for naught. By the judgment of the supreme court, these conveyances were- canceled and held for naught.

Considering this judgment, whether erroneous or not, as binding upon the parties and their privies, which it certainly is, then the question arises as to its effect upon the parties to this litigation. In my opinion, after the judgment of the supreme court, these conveyances must .be considered and held void for all purposes and to all persons. That no right to or interest in the land could be asserted under them by the vendee of the husband or those claiming under him. For all legal purposes the matter must be considered in precisely the same way as if such conveyances had never been executed.

Thus considered, this community property wTas vested one-half in the surviving wife and the other half in the appellants. It is not claimed that any fact or circumstance existed to authorize the surviving wife to convey the interest of the children in the property, if they had any, and no such fact or circumstance is shown by the record. As wras justly remarked in Johnson v. Harrison, 48 Tex., 257, as to community property, the interest of the survivor and that of the children is the same— each one-half of the remainder.

The legal title is in the survivor and the children; and that the power of the survivor to sell is dependent upon the existence of some claim against the community; and whoever purchases from such survivor must see to it that the facts exist w'hich authorize the sale.

From the facts and circumstances of this case, I conclude that the appellants are entitled to recover an undivided half interest in the land sued for, and that the judgment of the court below ought-to be reversed, and that the supreme court should now render such judgment as ought to have been rendered by the court below; that is, that the appellants have and recover of and from the appellees an undivided one-half interest in and to the property described in the petition; and that appellees be adjudged to pay the costs of suit as well as the costs of this appeal. [Opinion approved November 18, 1882.] Beversed and rendered.