Good v. Coombs

Coke, J. —The intervenors and defendants are satisfied with the judgment of the District Court. The appellant, Good, alone seeks a reversal of that judgment. We will consider such questions only arising on the record as are necessary to the adjudication of the case as to him. [49] hfo question is made of the fact, that the land in controversy is a part of the community estate of William Coombs and his former wife, Ivy. This is admitted by all the parties. The first question arising for consideration is as to the validity of the deed from William Coombs to Isaac FT. Coombs, and its efficacy to transfer the land therein described, or his interest in it. The appellant, in his argument, attacks this deed, as also that from Isaac N. to Rachel Coombs, as fraudulent, and charges that they were made in pursuance of an arrangement between those parties, entered into for the purpose of defeating the collection of the debt due Stone. There is no allegation of fraud, unfairness, or other cause of invalidity, made in appellant’s pleadings against these deeds or either of them, although he had notice from the pleadings, both of the defendants and intervenors, that 'they would be relied on against him. Yet, it seems that in the court below evidence was admitted without objection for the purpose of proving fraud; and, on the proof, the issue was there found against the appellant. If that issue had been properly presented by the pleadings, while there are some circumstances in proof which ■ may by regarded as suspicious, we think the whole testimony, taken together, preponderates greatly in favor of the good faith of the transaction, and that 'the appellant would have had no just ground to complain of the judgment of the court below sustaining it. Still less right has he to complain, when he did not make the issue in any mode entitling it to the consideration of the court. (Fort v. McKenny, 10 Tex., 220.) We are aware of no rule of law which prohibits the alienation by the survivor of the conjugal partnership of his portion of .the community estate, when the same is. done in good faith, and with no intent to defraud creditors or the heirs of the deceased partner. [50] The right to make sales of the community property would seem to be a necessary consequence of his obligation as survivor to discharge the debts against the partnershipbecause, usually, it is only by that means that these debts can be paid. (Jones v. Jones, 15 Tex., 147.). We believe it clear, that the deed in question passes the title of Wm. Coombs to the land of the grantee, Isaac N. Coombs. • The next question arises upon the deed from Isaac N. Coombs to Eachel Coombs, which purports to convey a defined and designated portion of a tract of land held by the said Isaac N. Coombs, in common with a number of other joint tenants. Is it operative and valid or not to convey the land ? We think clearly not. That it is inoperative and void, for all the purposes for which it can be considered here, we have no doubt. (See authorities cited hereafter.) . By the deed from William to Isaac E. Coombs, the grantee acquired title to an undivided half of the six hundred and forty acre tract of land in question, which descended at his death (the date of which occurrence is not shown by the record) to his heirs. [The death of the wife and her heirs must be meant by the judge.— Reporter.2 The remaining undivided half of said tract of land was held by the intervenors, who are the heirs of Ivy Coombs, deceased. Upon the defined and designated portion of this land, thus held and owned in common, the execution issued on the judgment in favor of Stone against William Coombs, who levied; the same was sold; and Good, the appellant, became the purchaser at the sheriff’s sale. The rights of the appellant, whatever they may be, accrued to him by virtue of this purchase. The question then arises as to the legal effect of this levy and sale. Does it operate, together with the sheriff’s deed to appellant, to vest in him the title to the land claimed, [51] or any part of it? We are of the opinion that it does not. That one joint tenant or tenant in common cannot convey a distinct portion of the estate hy metes and hounds, so as to prejudice his co-tenants, is not an open question in this court. (Stewart v. Baker, 17 Tex., 417; McKey v. Welch, 22 Tex., 396; Dorn v. Dunham, 24 Tex., 376.) In the case of McKey v. Welch, Chief Justice Wheeler, delivering the opinion of the court, says: “It appears to he well settled, and upon good reasons, that one joint tenant or tenant in common cannot convey a distinct portion of the estate hy metes and hounds; for to give effect to such alienations, as against the co-tenants of the grantor, would be to create new tenancies in common to the injury of the co-tenants. As one tenant in common has no right on partition to select any particular portion of the land, and insist on having his part set off in that specified portion, so he cannot convey such a right to his grantee;” and in support of the position cites numerous authorities. filie same process of reasoning is conclusive against the right of the judgment creditor to have set apart, for the satisfaction of his debt, a distinct portion of the common estate by metes and bounds, for certainly he has no higher right in or greater power over the property than the debtor, and is equally bound to respect the rights of the other joint tenants. And so it has been repeatedly held. (3 Vt., 394; 9 Vt., 138; 12 N. H., 563; 2 Conn., 244; 24 Maine, 308; Bartlett v. Haldon, 12 Mass., 348; Barnum v. Abbott, Ib., 474.) This view of the case disposes of it without the necessity of considering the other questions raised by the appellant, as to whether Stone’s judgment is a debt against the com7 munity estate of William and Ivy Coombs, and as to whether the community property is liable to be sold under [52] this execution against William Coombs, without any proceedings against the heirs of Ivy. It would have been otherwise had a certain portion or the whole of the community interest in the entire tract of land been levied on and sold. The appellant, in his pleadings, asks that, if he is not entitled to the land cMmed, a decree be rendered annulling and setting aside the levy'and sale, and refunding the money paid by him to the sheriff for the land; a proposition which it is believed the court below could not properly consider, without first having Stone, the plaintiff in execution, a party before the court, and he was not a party to the suit. Upon the whole, we are of the opinion, that there is no error in the judgment of the court below of which the appellant can justly complain; and that it should be Aeeirmed.