Schmeltz v. Garey

Citations

• 49 Tex. 49

Syllabus

<p>1. Parties—Lien in Probate Court.—An order of sale to foreclose ' a mortgage, sale and confirmation, with an administrator's deed to land sold by the intestate in his lifetime, his vendee being in possession under recorded deed, do not, as to such vendee in possession and not a party to the proceedings, confer title, or affect the rights of such party.</p> <p>2. Same—Necessary parties in foreclosure proceedings.—Nor is such administrator’s sale made valid by the fact that the mortgagee also had a judgment lien upon such land, when such judgment was not made the basis of the action of the Probate Court.</p> <p>3. Judgment lien in Probate Court.—The Probate Court does not have jurisdiction to call in a purchaser from the intestate, in a proceeding to enforce a judgment lien. Such court, therefore, is wanting in jurisdiction in such case.</p> <p>4. Property not inventoried, it seems, is not under the jurisdiction of the Probate Court, so as to be subject to its orders.</p> <p>5. Community property.—That at the marriage the husband had much money, and the wife nothing; that during the marriage relation the parties decreased in fortune, making nothing,—without explicitly tracing the purchase-money or consideration to the separate property of the husband, will not rebut the statutory presumption, that property purchased during the marriage is community property.</p>