Good v. Coombs

Citations

• 28 Tex. 34

Syllabus

<p>The appellant brought'suit for the recovery of. an interest in a tract of land purchased by him at sheriff’s sale, two hundred acres of which he admitted to be the homestead. The defendants and interveners in their pleadings notified the plaintiff that they relied upon certain deeds, under which they claimed adversely to him. The plaintiff, although thus notified, omitted to allege in his pleadings any invalidity in such deeds by reason of fraud or other cause. But, on the trial in the court below, the plaintiff was permitted, without objection, to introduce evidence impeaching the deeds for fraud; notwithstanding which, however, the issue thereon was found against him. This court, in view of the whole of the evidence taken together, and notwithstanding some suspicious circumstances, holds that the preponderance is in favor of the good faith of the deeds, and that the appellant, even if he had properly raised the issue by his pleadings, would have had no ground to complain of the judgment of the court below sustaining the deeds, and that he had the less right to complain, inasmuch as he had not made the issue in any mode entitling it to the consideration of the court.</p> <p>There is no rule of law known to this court, by which the survivor of the conjugal partnership is prohibited from alienating his or her portion of the community estate, provided the alienation is in good faith, and not with intent to defraud creditors or the heirs of the deceased partner.</p> <p>The right of the survivor of the conjugal partnership to make sales of community property would seem to be a necessary consequence of the obligation of such survivor to discharge the debts against the partnership, because it is usually by such means only that those debts can be paid.</p> <p>One joint tenant or tenant in common cannot convey a distinct portion of the estate by metes and bounds, so as to prejudice his co-tenants. This is not an open question in this court.</p> <p>It follows that a judgm