Jordan v. Imthurn

Citations

• 51 Tex. 276

Syllabus

<p>1. Community property—Survivor.—That the bond executed by the surviving husband does not equal in amount the community property left at his wife’s death, does not affect his right of control, &c., over community property, given by article 33 of the act of August. 15, 1870, to the survivor on filing inventory and bond.</p> <p>2. Same.—The giving of the bond by the survivor and its approval by the clerk is in the nature of a judicial proceeding, which should not be held void in a collateral proceeding.</p> <p>3. Same—Survivor may incumber.—The right to dispose of. includes the right to incumber community property. A deed of trust made by the survivor upon community property, after bond and inventory, held valid against the heirs, &c.</p> <p>4. Homestead—Abandonment.—A surviving husband, after bond and inventory, incumbered by deed of trust the homestead to raise money for liis business; subsequently, the husband did not actually occupy the premises with his family: Held, As against his children by a subsequent marriage, such trust deed held the homestead.</p> <p>5. Burden of proof.—A deed of trust upon property executed by a surviving husband upon community property in his possession, is prima-facie valid, and the burden of proof would lie upon any one attacking it as invalid, from its conflict with homestead rights, to show, by affirmative allegation and proof, that at the time- of the execution of such trust deed the property was a subsisting homestead.</p>