[William Walter Brice Robinson & Gardiner Springs Robinson were officers in
Bonner-Robinson Bank of Palestine, Anderson Co., TX.  Their attorney was
Benjamin Howard Gardner, Sr. who later became a judge.]

50 S.W. 635
HINZIE et al. 
v. 
ROBINSON et al.1
Court of Civil Appeals of Texas.
March 1, 1899.
Page 636
        Appeal from district court, Anderson county; W. H. Gill, Judge.
        Action by W. B. Robinson and another against M. Hinzie and others to foreclose a mortgage given to 
secure the payment of a note. There was a judgment for plaintiffs, and defendants appeal. Affirmed.
        S. A. McMeans, for appellants. B. H. Gardner, for appellees.
        NEILL, J.
        This suit was instituted by appellees, W. B. and G. S. Robinson, against M. Hinzie to recover on a 
note for $1,000, executed by him to them on December 4, 1889, due one day after date, with interest at 
the rate of 12 per cent. per annum, and which provided for the payment of 10 per cent. thereon as 
attorney's fees in case suit should be brought on the same, and to foreclose a mortgage lien on four 
certain tracts of land given by the maker to secure the payment of the note. It was alleged in appellees' 
petition that the mortgaged lands were the community property of M. Hinzie and his deceased wife, Annie, 
and that the note sued on was a community debt of said M. Hinzie and wife, and a charge upon the lands 
upon which the mortgage was given. H. M. Hinzie, Agnes M. Hinzie, W. E. Hinzie, Francis T. Hinzie, Rose 
H. Hinzie, Raymond C. Hinzie, and Joseph L. Hinzie, the children and heirs of Annie Hinzie, all of whom are 
minors save H. M. Hinzie, are made parties defendant, for the purpose of foreclosing the alleged mortgage 
lien. It was averred in the petition that W. L. Moody & Co., Eliza Kempner, and the First National Bank of 
Palestine, were setting up some kind of judgment liens on said lands, and they were also made parties 
defendant. The defendants Hinzie answered by general denial, and H. M. Hinzie and the Hinzie minors 
specially pleaded that the lands described in the mortgage were the community lands of their father and 
deceased mother, that their mother died January 1, 1888, and that by inheritance from her they were the 
owners of an undivided one-half interest in said land, which was not subject to foreclosure under said 
mortgage, and prayed that said mortgage as a cloud on their title be removed and canceled. Moody & Co. 
and Kempner answered, setting up certain judgment liens on the lands described in the mortgage, and 
prayed for foreclosure, upon the interest of M. Hinzie in said lands, and that the same be sold to satisfy 
their said judgment liens. The First National Bank of Palestine disclaimed any interest in the lands. The 
case was tried by the court without a jury, and judgment was rendered in favor of appellees, W. B. and G. 
S. Robinson, for the amount due, principal, interest, and attorney's fees, on the note sued upon, together 
with a foreclosure of the lien against M. Hinzie, H. M. Hinzie, and the Hinzie minors upon all of the lands 
upon which the mortgage was given to secure the notes; and the judgment liens of W. S. Moody & Co. 
and Mrs. Eliza Kempner upon said lands were foreclosed as against M. Hinzie. It was decreed that the 
lands should be sold, and the proceeds be first applied to the payment of Robinsons' judgment, and, if 
more than sufficient to satisfy such judgment, the remainder should be equally divided between Moody & 
Co. and Kempner on the one part, and H. M. Hinzie and the Hinzie minors on the other. Judgment was 
also rendered for the First National Bank of Palestine for its costs,—from which judgment all of said 
Hinzies have appealed.
Conclusions of Fact.
        There is no statement of facts in the record, and we adopt the conclusions of fact found by the trial 
court, which are as follows:
        "(1) On November 2, 1886, J. W. Richardson was elected county treasurer of Anderson county, and 
on November 12, 1886, qualified by giving bond, with M. Hinzie and others as sureties, and entered upon 
the discharge of his official duties.
        "(2) That his term of office expired on the 20th November, 1888, at which time his successor 
qualified.
        "(3) That during his term of office said Richardson received large sums of money belonging to the 
permanent and available school fund of said county, and at the expiration of his term it was ascertained 
that he was short in his account on said fund, and a defaulter to the amount of $7,065.84.
        "(4) That on March 4, 1889, the county judge of Anderson county filed suit against said Richardson 
and the sureties on his bond, including M. Hinzie, for the recovery of said sum; and afterwards, on 
November 18, 1889, a compromise was effected, and defendant M. Hinzie was discharged from liability on 
said bond by paying more than $1,000, which sum was less than his liability on said bond.
        "(5) That in order to pay his proportion of the compromise defendant M. Hinzie, on December 4, 
1889, borrowed from plaintiffs $1,000, executing his note therefor, payable one day after date, with 
interest from maturity at the rate of 12 per cent. per annum until paid, and promised, if said note should 
be collected by an attorney or by suit, to pay 10 per cent. on the amount due as attorney's fees, to be 
computed and recovered as part of the judgment.
        "(6) On January 2, 1890, said M. Hinzie, in order to secure the payment of said note, and in 
compliance with the agreement entered into when said note was given, executed and delivered to W. B. 
Robinson, trustee, a deed of trust upon four tracts of land, described in said trust deed as follows: First 
tract: `Being three hundred and twenty acres
Page 637
of the R. S. Foote survey of 64 acres on the banks of Sabine river, situate in Gregg county, Texas; the 320 
acres herein conveyed being the west half of said survey; said land being conveyed to me on July 12, 
1876, by S. P. Hollingsworth by deed, and to which conveyance reference is here made for definite 
description by metes and bounds.' Second tract: `Being three hundred and twenty acres of land being a 
part of the 640 acres patented to Wm. Mann, in the county of Leon, Texas; said land being conveyed by 
Walter Gresham to me by deed dated August 10, 1878, and to which deed reference is here made for 
particular description of said land herein conveyed.' Third tract: `Being three hundred and twenty acres of 
land on the west bank of the Trinity river, and on both sides of the I. & G. N. R. R., situate in the county 
of Leon, state of Texas; said land being originally patented to William Violet, and said patent is hereby 
referred to for a particular and definite description of said land.' Fourth and last tract: `Being two hundred 
and thirty-two and one-half acres of land situate in Harris county, state of Texas, originally patented to A. 
G. Holland by the state of Texas under date January 1, A. D. 1863, number 447, and the 232½ acres 
herein conveyed being a part of said Holland survey.'
        "(7) That the lands referred to in paragraph 6 were the community lands of said M. Hinzie and his 
wife, Mrs. Annie Hinzie. That said Mrs. Annie Hinzie died in Palestine, on January 1, 1888, leaving the 
following named children and heirs, viz. H. M. Hinzie, Agnes M. Hinzie, William Eugene Hinzie, Francis 
Thomas Hinzie, Rose Helena Hinzie, Raymond Carroll Hinzie, and Joseph Leonard Hinzie, all of whom are 
minors except H. M. Hinzie, who is the guardian of the others.
        "(8) That the fourth tract of land described in said deed of trust and in paragraph 6 hereof was, as 
shown by the testimony of Mr. Hinzie, the only land owned by M. Hinzie on the Holland survey, or in Harris 
county, Texas, at the date of said trust deed; and the correct field notes and description of same as shown 
by the testimony of said M. Hinzie is as set out in a release executed to him by the Texas Land Company, 
in which release said land is described as follows: `Three hundred and twenty acres of land originally 
granted by the state of Texas to A. G. Holland by letter patent No. 447, Vol. 7, dated January 1, 1863, 
situated near the town of Spring, in the county of Harris, state of Texas, and more particularly described 
as follows: Beginning at a post on the south bank of Spring creek, from which a pine 40 inches in diameter 
brs. S., 52 degrees W., 4¾ varas, marked "B," another, marked "C," 36 inches in diameter, bears N., 39 
degrees E., 1 vara; thence south 2,228 varas to post on R. O. W. McMann's west line, from which a gum 
marked "B," bears N., 55 degrees E., 7½ varas, another, marked "C," bears S., 7 degrees E., 15 varas: 
thence west 672 varas to a stake in prairie; thence north 3,148 varas to a hickory marked "XIII," on the 
bank of Spring creek, from which a magnolia, marked "T," bears N., 45 degrees W., 7¾ varas, another, 
marked "B," bears south, 45 degrees E., 3¾ varas; thence down the creek with its meanders to the place 
of beginning,—excepting from said tract ten acres sold by W. R. Baker to Williams, and 15 acres sold to A. 
L. and Alabama Long; and further excepting the improvements on said land, including house, tannery, mill 
site, and six acres of land surrounding same, or to be taken so as to include the said improvements; and 
also excepting thirty-five acres and eight-tenths of an acre (35 8/10) of land to be taken off from the 
south end of the 289 acres of land remaining, —the said 35 8/10 acres being bounded as follows: 
Beginning at the S. E. corner of the said original survey, thence with the east line thereof 1,200 feet, 
thence west to the west line of the 289 acres of land remaining as hereinbefore described, thence south 
with said west line to the south boundary line of said original survey, thence east to the place of beginning 
with the said south boundary line; and further excepting from the residues of two hundred and fifty-three 
and two-tenths (253 2/10) acres of land the right of way of two hundred (200) feet of the I. & G. N. R. R. 
through the said 253 2/10 acres of land. The amount of land embraced in said right of way being twenty 
acres and seven-tenths acres of land, and leaving for a residue two hundred and thirty-two and one-half 
acres of land.'
        "(9) That on November 25, 1890, defendants W. L. Moody & Co. recovered a judgment against M. 
Hinzie in the district court of Anderson county for $6,205, with 12 per cent. per annum interest on $5,641 
thereof and 8 per cent. interest on $564 thereof from date, on which judgment there was collected on 
March 3, 1891, $1,018, of which $63 was applied to the payment of costs, $576.36 to discharge the $564 
portion of the judgment and interest, and $378 on the $5,641 portion of said judgment. After the recovery 
of said judgment Moody & Co. caused abstract of said judgment to be duly recorded and indexed in the 
judgment records of Leon, Gregg, Freestone, and Harris counties.
        "(10) That on November 28, 1890, Harris Kempner recovered judgment against said M. Hinzie in the 
district court of Anderson county for $7,224.20, with 12 per cent. interest on $5,363 thereof and 8 per 
cent. interest on $1,861.20 thereof from date, and thereafter he caused abstracts of said judgment to be 
duly recorded and indexed in the judgment records of Leon, Gregg, Freestone, and Harris counties. That 
thereafter the said Harris Kempner died, and defendant Mrs. Eliza Kempner, who was the wife of said 
Harris Kempner, qualified as survivor of the community."
Conclusions of Law.
        The trial court concluded from the foregoing facts that the amount due by M. Hinzie
Page 638
on account of the breach of Richardson's bond was a charge upon the community estate of himself and 
wife, and that his obligation to Robinson bound the community property described in mortgage for its 
payment. This conclusion is assailed by appellants' first assignment of error. The liability of Hinzie for the 
default of Richardson arose from his suretyship on the latter's bond and the breach of its conditions. When 
he obligated himself to be responsible for the default of Richardson, his wife was living, and the obligation 
bound her interest in the community property as well as his. Her death did not change the obligation, but 
it remained as it was when the bond was executed. Nor was it affected by the fact that the death occurred 
before the amount due on the obligation was fixed and determined by Richardson's default. A debt or 
obligation created by the husband during coverture, as this one was, creates a charge upon the 
community estate, and hence, in general terms, a community debt may be said to be any debt or liability 
made by the husband during marriage. Ballinger, Com. Prop. § 117. As the liability or debt created by the 
bond was contracted during marriage, and continued a charge upon the community property after the 
death of Mrs. Hinzie, her husband had the right to sell, mortgage, or otherwise dispose of such property 
for the purpose of satisfying such community obligation or debt. Carter v. Conner, 60 Tex. 55; Hill v. 
Osborne, Id. 392; Burkitt v. Key (Tex. Civ. App.) 42 S. W. 231. We are of the opinion, therefore, that the 
assignment of error is not well taken.
        It is contended by the appellants that the description in the mortgage of the fourth, or Harris county, 
tract of land is not sufficient to identify it, and, on account of the insufficiency of the description, that the 
mortgage as to that tract is void. The appellees, in their petition, alleged that Hinzie owned only 232½ 
acres in the A. G. Holland survey, situated in Harris county, Tex., and averred that he intended to convey 
by the mortgage said 232½ acres, which are described by the field notes thereof set out in the petition. 
Hinzie testified that he owned only this tract in the Holland survey, and that it was properly described in a 
written release to him, which was admitted in evidence. The field notes in the release are the same as are 
set out in the petition. Under the pleadings and evidence we are of the opinion that the mortgage upon 
this tract was not void for insufficiency of description. It is well established that a voluntary conveyance of 
a certain number of acres of a larger survey entitles the grantee to an undivided interest therein to that 
extent, but, if the grantor only owned the number of acres which he undertook to convey, the deed would 
convey what he owned, and it would be proper to allege and prove the facts, giving full description of the 
tract owned. Fontaine v. Bohn (Tex. Civ. App.) 40 S. W. 637; Nye v. Moody, 70 Tex. 434, 8 S. W. 606; 
Blackburn v. McDonald, 1 Posey, Unrep. Cas. 355; Dohoney v. Womack (Tex. Civ. App.) 20 S. W. 950; 
Devl. Deeds, § 1019. There is no error in the judgment appealed from, and it is affirmed.
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Notes:
1. Writ of error denied by supreme court.
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