Collins v. Box

Ogden, P. J. The question of homestead having been conceded by the parties to this suit in the court below, [192] we are not called upon to notice that portion of the judgment in favor of the widow of Stilwell Box. And the claim of Marion C. Box, under the deed from his father, having been decided by the jury adversely to that claim, and no appeal having been taken on account of that decision, we may take it for granted that the finding of the jury in that respect was correct. And, therefore, we do not deem it necessary to notice specifically all the exceptions taken on the trial, nor the assignments of errors to the ruling of the court in the same. Under our system of pleadings and practice, a party may set up as many legitimate defenses to an action as he may have and choose to plead; and in an action of trespass to try title there could be no legal objection to a party setting up, in his answer or plea of intervention, title to property by purchase, and at the same time, or by an amendment, claim it by inheritance (Paschal’s Digest, Article 1441); and in case either answer or plea is sustained by proof, he is entitled to a judgment to the extent of that answer or plea. In the case at "bar, the intervenor in the first instance claimed the whole land in controversy by purchase from his father, and then claimed, for the heirs of his mother, her community interest by inheritance. These two claims, we think, were admissible; and had he established the validity of his deed, he would have wholly defeated the plaintiff’s action; but failing in that, he might have sustained his last plea, and have thereby defeated the action in part only; and as the judgment of the court is in harmony with the hypothesis that the latter plea was legitimate and true, this record presents only one other question which need be noticed in this opinion. Can the surviving husband alienate or encumber the community interest of his deceased wife in real property for debts contracted after her death, so as to defeat the rights of her children as her heirs? or, can such property be [193] seized and sold under execution for debts contracted by the husband after the death of his wife, so as to extinguish the rights of her heirs? We think these propositions have been settled by statute, Article 4642, Paschal’s Digest, and the repeated decisions of this court, referred to in Note 1049, of the same work. On the death of the mother, one-half of the community estate passed to the surviving husband and father, and the title to the remaining half at once descended to and vested absolutely in .the children of the deceased mother, subject only to the then existing debts of the community. This doctrine has been so often repeated that we deem it unnecessary to refer to authorities in its support. At the time of the death of Eunice Box, in 1846, the land in controversy was the community property of herself and husband. Her interest then descended to and ves ted. in her children, and was no longer subject to be seized for the subsequent debts of the surviving husband and father. In 1868 this property was sold under execution as the property of Stilwell Box, for a debt contracted subsequent to the death of his wife. This sale could in no‘ manner affect the interest of the heirs of Eunice Box in the land in question, and the purchaser only acquired the interest of Stilwell Box, which was a half-interest only. Nor could Stilwell Box, by a voluntary sale, to pay his individual debt contracted after the death of his wife, have conveyed more than a half-interest in the land. This land, then, on the dajr of the sheriff’s sale in 1868, belonged, one-half to Stilwell Box and the other half to the heirs of Eunice Box, and the purchaser at that sale acquired only an undivided half-interest, which was awarded to him by the judgment of the court in this cause, and we think that was all he had a legal right to demand. Certainly former advancements by the father could in no way have so divested the vested title of the heirs to the land in controversy as to make the whole subject to forced sale for [194] the individual debts of the father. The court may have erred upon the trial in permitting an amendment in the pleadings after the parties had announced ready for trial. But the record as presented here is so defective that it is somewhat difficult to determine the exact chronological order of the pleadings, or orders of the court, and further it does not appear from the record that the opposite party was surprised or injured by the rulings complained of; and as it appears that substantial justice has been reached by the judgment of the lower court, we are disinclined to disturb the sam.e on account of what appears to be immaterial errors, when so imperfectly set out in the record; the judgment is therefore affirmed. Affirmed. Opinion delivered September 15, 1873.