Geeen v. Grissom , 53 Tex. 432 ( 1880 )

Bonner, Associate Justice.

Tinder the agreement of counsel there is but a single question presented for our consideration in this case: the legal effect, under the community act, August 26, 1856 (Pasch. Dig., art. 4648), of the proceedings taken by Mrs. Rebecca Grissom, surviving wife of M. S. Grissom, deceased, to invest her with the power of sale of his half interest in their community lands, under sale of same, by virtue of which power appellant Green claims title.

It is contended by appellee J. L. Grissom, that as Mrs, Grissom did not sign and swear to an inventory of this property, the proceedings were insufficient, under the statute, to vest in her this power of sale.

This court has firmly upheld proceedings under this and subsequent statutes on this subject, where they seemed to have been taken in good faith for the legitimate purposes contemplated by these acts, and when in substantial compliance with their spirit and intention. Dawson v. Holt, 44 Tex., 174; Cordier v. Cage, 44 Tex., 532; Long v. Walker, 47 Tex., 173; Jordan v. Imthurn, 51 Tex., 276.

In Cordier v. Cage it was said: “In the case of Dawson v. Holt, supra, we decided that the act of 1856 was intended and designed by the legislature to afford an easy and speedy mode of managing and controlling community estates, and to allow a survivor to manage, sell or dispose of it, relieved of the trammels thrown around such estates prior to that time, and that it was entitled to a liberal construction.” 44 Tex., 535.

In the subsequent case of Long v. Walker, 47 Tex., 173, it was held that a defective inventory was not sufficient to avoid the sale.

In the case under consideration, Mrs. Grissom made application in open court to file inventory and have the property appraised under the provisions of the statute. The court appointed appraisers, an inventory was returned and filed, and as to this land accomplished all the practical objects of an inventory, signed and sworn to, and seems to have been accepted as such by the court. Each tract was separately valued by the appraisers appointed by the court, and the proceedings entered of record.

There is no pretense of any intention to defraud the heirs of the deceased husband, and the presumption would arise that the land was sold for a legitimate purpose; and hence it would seem that the proceedings were in good faith, were accepted by the court as sufficient, and thus acted upon by the surviving wife and the purchaser.

Under all the circumstances, we are of opinion that the omission complained of was rather an irregularity which cannot be taken advantage of in a collateral action, than such fundamental omission which would render the proceedings wholly void. Jordan v. Imthurn, 51 Tex., 287.

In our opinion there was error in deciding that the proceedings taken by Mrs. Grissom were not sufficient to invest her with power of sale of this property, for which the judgment is reversed arid the cause, remanded.

Reversed and remanded.

[Opinion delivered June 15, 1880.]