
    W. M. Shannon v. C. Gray et al.
    (Case No. 4037.)
    1. Homestead.— The heirs of the wife, who, at the time of her death, had a community interest in homestead property, which, after her death, was abandoned by the husband and afterwards sold in satisfaction of a trust deed made by the husband and wife, have no interests as against the purchaser at trust sale.
    2. Homestead — Heuis.— The children have no interest in the homestead, as such, by virtue of the homestead rights of the deceased parent; following Johnson v. Taylor, 43 Tex., 121.
    Appeal from Grayson. Tried below before the Hon. Joseph Bledsoe.
    Appellant, as guardian of Thos. Shannon, brought this suit February 3, 1879, against James Porch, John Porch, Chambers Gray .and S. B. Cook, in trespass to try title, and in the event the proof should show his ward was only tenant in common, then for partition, etc.
    The facts relied upon were, in substance, that at the date of the «death of Elizabeth Shannon in 1863, the land was the homestead of herself and husband, Sevier Shannon, who were the parents of appellant’s ward, and was their community property. Appellees answered that before the death of Elizabeth Shannon she and her husband gave a deed of trust on the land to secure Taylor, Knapp •& Co. in the payment of a community debt. That after Elizabeth’s death her husband, Sevier Shannon, went into bankruptcy, and that by an order of the bankrupt court in the matter of his estate the assignee conveyed the land to Zolman Taylor, one of the firm, in lull satisfaction of the trust debt, and that appellees claimed under this conveyance; that soon after his wife’s death Shannon abandoned the property and did not thereafter live upon it, and that afterwards Zolman Taylor conveyed the land back to Sevier Shannon, who, on the same day, at the same time, conveyed it to appelleeCook, under whom the others claimed. The purchase money paid by Cook was paid over to C. C. Binkley in satisfaction of the debt to-Taylor, Knapp & Co.
    The cause was submitted on an agreed^ statement of facts, and judgment rendered for appellees.
    
      Hare & Head, for appellant,
    in support of the proposition that the homestead right of the mother descended under the act o£ 1848 to the heirs -in fee, discharged of express liens created in the lifetime of the mother, cited Reeves v. Petty, 44 Tex., 249; Horn v. Anderson, Tex. Law Jour., No. 14, p. 208.
    
      Throckmorton, Brown & Bryant, for appellee.
   Watts, J. Com. App. —

Appellant objects to the judgment because, at the death of Mrs. Shannon in 1863, the homestead right vested in the minor child, and as Shannon and wife were insolvent the child took the fee to the land.

In Brewer v. Wall, 23 Tex., 589, the court said: “This court has decided, and the constitution clearly contemplates, that the homestead right of the wife does not survive after her death, so as to vest a homestead right in the children of the marriage. In other words, after the death of the wife, the husband may sell the homestead, if it be his separate property, the children having no interest in the homestead which restricts the father’s right to sell.” While in Johnson v. Taylor, 43 Tex., 122, it said: “The children have no' interest in the homestead, as such, by virtue of the homestead rights of the deceased parent. If it was community property of their parents, they inherit the share of the deceased parent, just as they inherit other community property.” This doctrine is also fully approved in the case of Grothaus v. De Lopez, 57 Tex., 670.

These authorities answer this objection to the judgment.

Then the child inherited the community interest of the mother,, not, however, as a homestead, but as any other community property, subject to the deed of trust executed by his. parents prior to the death of the mother.

It is well settled that, after the death of the wife, the husband could have sold the property, for the purpose of paying this community debt, without first qualifying as survivor in community. It is equally well settled that his administrator, if he had died, would have bad the right to control and administer the property, for the purpose of paying the community debts.

When the father went into bankruptcy, and by his schedule assigned this land to the assignee, burdened with the lien, and for the purpose of paying the debt, the title passed to the assignee and thence to the purchaser by the assignee’s conveyance. This bankruptcy in its effect is but a mode of administering property for the purpose of paying a debt with which it is charged. The property -had long before that time lost its homestead character by its abandonment as such. John v. Battle, 58 Tex., 591. If, however, we should be mistaken in this view of the law, it will not be disputed that the sale and conveyance of the land by Shannon for the purpose of paying the community debt was an effectual-bar to a recovery of the land or any part of it by appellant. Johnson v. Harrison, 48 Tex., 257.

There is no error in the judgment, and it ought to be affirmed.

Affirmed;

[Opinion approved April 17, 1883.]  