Jordan v. Imthurn

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. 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. 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. 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. 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.

Appeal from Galveston. Tried below before the Hon. T. H. Waul, special judge. J. 0. Imthurn & Co., lien creditors of Charles H. Jordan, deceased, brought this action against the executors of Charles H. Jordan, deceased, E. Hammers and August Buttlar, and Mathilde Jordan, surviving wife of said Jordan, a native and resident of the empire of Germany, and Frederick and Charles Jordan, minor children of said Charles H. Jordan by his first wife, Caroline Ernestine Jordan, also deceased, at present and since the year 1871 residing with their relatives in Germany, (both of which minors were born in the State of Texas,) seeking a foreclosure of a lien against lots 8, 9,10, and 11, in block number 435, in the city of Galveston, the homestead of Charles II. Jordan and Caroline E. Jordan, deceased, father and mother of the minor defendants, by virtue of a deed of trust executed by Charles H. Jordan after the death of his. wife, Caroline Ernestine Jordan, under and by virtue of a qualification as survivor in community under the probate act of August 15, 1870. The opinion of the special judge states the case with sufficient carefulness, and is given, as follows: “ This suit was instituted to foreclose a mortgage, with powers of sale, executed by C. H. Jordan on June 5, 1873, upon lots 8, 9,10, and 11, in'block 435, in the city of Galveston, to secure, plaintiffs in the amount of $16,900, payable on May 1, 1875, with interest thereafter at 8 per cent, per annum. “ The pleadings and evidence show various payments made by the executors, and that the amount now due is $11,640. It is also shown that the lots were bought by Jordan in 1859, after his marriage with Caroline Ernestine, at a price within the limit allowed by the Constitution, upon which to erect and establish a homestead; that the purchase was made with that intention, and carried out by building a commodious residence thereon in 1868, in which his wife, the two minors the offspring of the marriage, and himself resided, until she died, on the 1st of January, 1871, leaving surviving her the two infants, aged respectively about four and two years. “In June, 1871, Jordan qualified as survivor of the community by inventory and appraisement and by giving bond, with security, in the sum of $81,219, the estimated value of the community estate, conditioned according to law; whereupon he took chai’ge of and controlled the community estate. “ That afterwards he removed his children to Germany, to be there reared and educated under the guidance and care of their relatives, and that they still continue to reside in Germany. “ That shortly after the removal of his children he rented the homestead, and it has from that time been occupied by tenants. “ That subsequent to the removal of the children and the renting of the homestead, Jordan executed the trust deed in controversy to secure a liability originating in a commercial transaction after the death of his wife, and with which the community was in no manner connected. “That about this time Jordan’s health became seriously impaired; that he made lengthened visits to Europe, and closed up his commercial business in Galveston; that when in the city, after his first visit, he occupied a room in his former home. On his later returns, he occupied a room fitted up in his former commercial building, on Mechanic street. “Before his last voyage to Europe he seemed despondent, and stated he would return if his health was restored; but that he would not return to Galveston until after the recovery of his health. Whilst in Europe, in 1874, he intermarried with Mathilde Kuester, who then and still resides in Germany and has never been in the State of Texas. That Jordan died in Baden-Baden, in 1875, on the 27th day of April. “It is further shown that the community estate of Jordan and wife (Caroline Ernestine) and the separate estate of Jordan are insolvent, and that all the property conveyed by the trust deed to plaintiff, save the lots in controversy, has been sold to satisfy older lions, and the balance of the estate left by Jordan exhausted in the due course of administration. It was also proved that real estate had diminished in value very greatly since 1873; that the homestead in controversy was valued by Jordan at $17,000, and that he refused an offer of $15,000 for it; that now $7,000 would be a high estimate, and that it would hardly bring that price. “ 1. Upon these facts, the defendants urge, that inasmuch as the property belonged to the community of C. H. and C. E. Jordan, it should be first subject to the community. “ 2. That upon the death of Caroline Ernestine, in 1871, her share in the community became at once vested in her surviving children, and liable only for the debts of the community. “ 3. That the lots in controversy constituted the homestead of C. H. Jordan and family during the life of his wife Caroline. After her death, the homestead continued in himself and children until his death, and is now the home of the children, or of the surviving family, and, therefore, cannot be sold by decree of this court, as such sale would be a forced sale. “ 4. That at the death of their mother, the minors inherited or became invested with an interest as in fee in the homestead, which could not be divested by their father; or, admitting this power to sell absolutely, it could not be incumbered by mortgage or other lien. “ 5. That Mathilde Kuester, the widow of Jordan, is entitled to the property, she being legally the head of the family; and, therefore, it cannot be subjected to a sale under the trust deed. “ 6. That property and assets of the estate should be administered by the executors, as directed by the will' of C. H. Jordan. “ The community estate, by the laws of Texas, has always been placed under the control and management of the surviving spouse. This was not only the course of the civil law, but has been recognized and adopted in most systems of jurisprudence as the most equitable metho'd of settling all partnerships after a dissolution by death or otherwise. “ The surviving husband, under our law, is liable not only to the full extent of the community estate, but personally in his individual estate, and in any manner he might dispose of his separate estate he might use the community property in the settlement of his debts, he being, of course, personally liable to the parties entitled as heirs or creditors for any misapplication of the assets beyond the amount necessary to settle the community liabilities. Owing to a want of knowledge or adaptation to a system of marital partnership not in consonance with the experience of our heterogeneous population, estates were loosely managed, accounts not kept, responsibilities incurred, and the titles of purchasers of community property rendered uncertain or worthless. “ This uncertainty continued under our course of legislation to a greater or less extent until 1870, when the Legislature, on August 15 of that year, passed the act by which the survivor of the community, in addition to the inventory and appraisement before that time necessary, when, upon giving bond, ‘the husband continues to have the same power of disposition over the community property which he possessed during the continuance of the marriage.’ “ The bond required being for the full value of the eommunity, was intended by its terms for the protection of the creditors as well as the heirs or others entitled, and is, to some extent, a substitute for the property; and as the husband, during the existence of the community, has the right to sell, mortgage, manage, or dispose of the community property for his individual or a community debt, the mortgagee, or cestui que trust for whose benefit the community property was pledged to secure the individual debt of the husband, has a preference over any unsecured creditor of the community upon the property mortgaged; and so Jordan, as survivor, having full power at the date of the trust deed to execute it', it became effectual, according to its terms, to secure the plaintiffs against any claim of the creditors of the community or the minor children of Caroline Ernestine claiming any rights to the property as community. “Upon the claim of defendants—minors and Mathilde Kuester, the surviving wife—to the property as the property of their homestead, testimony has been introduced to establish an abandonment by Jordan of Ms domicil and residence in Galveston. I do not deem the testimony sufficient to prove that fact; the evidence of an abandonment of one’s home and country, which is involved in the actions and expressions of Jordan, should be very definite and explicit. Eo length of absence in pursuit of health is sufficient to fix such intention, and it is the safest to adhere to the recognized rule, that until a new domicil is acquired fado et animo, the old one is retained, and therefore that Jordan died in January a citizen of Texas, with his domicil at Galveston. “ The retention of a homestead cannot fairly be tested by the same rules. The abandonment of one’s country involves a violation of sentiment, a yielding of patriotism, and an abdication of political fraternity. The disposing of one’s residence—his homestead—may be a matter of taste, convenience, or profit. “A person apparently in easy circumstances, as was Mr. -Jordan previous to and at the execution of the trust deed; his wife dead; his children sent abroad to be reared up and educated and too young for companionship or the hope, within any reasonable time, to be united in a family with their father in Galveston; his health broken down; his mercantile interest terminated; his time mostly spent in Europe in pursuit of health; without the pecuniary necessity of retaining the homestead; no use for it as a home or shelter or refuge for his family,:—it would require no great weight of argument to infer the intention of abandonment from the facts exhibited in evidence.- He had a right to dispose of the premises as he might dispose of any other portion of his real estate, and, as the head of the family, his children would be bound by his actions. He had a right to abandon the premises, did abandon them, and whilst the house was occupied by tenants, his children abroad, and he only temporarily present, he conveyed the premises by mortgage to plaintiffs; and certainly they should not be made losers by depending upon the deed in trust from Jordan and the necessary implicit assurance that he was authorized to make it; nor can we draw an inference, so unfavorable to his good name, that the conveyance was a fraud, and that he harbored a secret intention of claiming the property as his homestead. Were Jordan now living and the instrument a simple mortgage, he could not resist the foreclosure, and being dead, the defendants are bound by his acts. “This mortgage having been executed before his marriage with Mathilde Ernester,—coupled with the facts that she still resides in Germany, has never visited Texas or made application for any right of homestead, and no claim to the property set up for her, except as appears from her answers in this case,—it is therefore concluded that she has no right, as against the plaintiffs, available in this suit. “ The directions of the will, if in conflict with the contract of the testator and plaintiffs, of course would be inoperative, as the testator had no power by the terms of the will to alter in any particular the terms of his contract, nor have his reppresentatives. “ There are other interesting questions raised and argued by counsel on either side, but, from the conclusions formed, it has not been considered necessary to discuss them. “Judgment and decree will be entered for the plaintiffs according to the prayer of the petition; the costs of the suit and an allowance of $100 to H. W. Rhodes, Esq., to be paid out of the proceeds of the sale.” Erom this decree the defendants appealed.