Fagan v. McWhirter

Citations

• 71 Tex. 567
• 9 S.W. 677
• 1888 Tex. LEXIS 1184

Syllabus

<p>1. Community Homestead—Pleading.—After the death of the wife, a child of the marriage surviving, the husband sold the homestead, part for cash, remainder on credit, the vendor’s lien being reserved. Suit was brought on the note for the unpaid purchase money and to foreclose the lien. Defendant resisted payment, pleading that the vendor, husband, owned but one-half interest, and that he had no right to sell the homestead so as to pass the right of the child. It appeared that the community was indebted at the wife’s death, and that the sale was made to pay the debts. No replication was pleaded to the answer. Held that plaintiff could show the indebtedness of the community as a basis for his power to sell the land to rebut the plea denying his authority without pleading such facts in replication.</p> <p>2. Power to Sell Community.—It is well settled, and not an open question, that the surviving husband can sell community property to pay community debts.</p> <p>3. Same—Homestead.—The right of the surviving husband to sell the homestead to pay community debts' has been recognized in 65 Texas, 635, Ashe v. Yungst, and the case is followed.</p> <p>4. Vendor and Vendee.—A vendee with full knowledge of the facts at his purchase taking a warranty deed can not set up a partial failure of title in defense in an action for the purchase money—his possession not being disturbed.</p>