Andrus v. Randon

• Decision Date: 01 January 1870
• Citation: 34 Tex. 536
• Parties: W. ANDRUS, EXECUTOR, ETC., v. NANCY RANDON.
• Court: Texas Supreme Court

34 Tex. 536

W. ANDRUS, EXECUTOR, ETC.,

v.NANCY RANDON.

Supreme Court of Texas.

1870.

1. The case of Crawford v. Bender, 33 Tex. 745, cited as settling the effect of the constitutional suspension of the statutes of limitation from 1861 to the approval by congress of the present constitution of the state, March 30, 1870.

2. On the 21st of May, 1861, R. and his wife, with a trustee for the latter, entered into written articles of separation, and by which a division of their principal community property was also made, with a covenant on the part of R. that he would divide the live stock and “all other community property, when requested.” In 1865 R. procured a decree of divorce. On the twelfth of October, 1868, R. being then dead, his divorced wife sued his executor for her portion of the community funds on hand at the date of the separation, and also joined as defendants the commission merchants in whose hands such funds were alleged to be. At the date of the separation there were more than $20,000 community funds in the merchants' hands, but before R. died, he drew out all but some $1,500. The plaintiff recovered judgment against the merchants for all of the latter sum, and against the executor for half of the balance of the funds on hand at the date of the separation. Held, that the plaintiff was not barred by limitation, nor was there error in adjudging to her the entire sum remaining in the hands of the merchants, there appearing to no be debts outstanding against the community.

APPEAL from Fort Bend. Tried below before the Hon. S. C. Barden. The opinion of the court states the main facts. Randon obtained a decree of divorce from the plaintiff, in the month of January, 1865.

Gustave Cook, for the appellant.

1. The claim sued on by appellee was barred by limitation of two years at the time of the institution of suit in the district court, and at date of presentation to the executor. It cannot be denied that the dissolution of the marriage between appellee and David Randon in January, 1865, gave to appellee all the rights and powers of a feme sole to sue for and recover any and all property to which she became entitled upon the dissolution of the marital partnership, and also devolved upon her the duties and liabilities as well. Now, it is apparent that, upon the dissolution of the marriage in 1865, appellee acquired the right to sue, and with it the corresponding liability to limitation. It is further apparent that this suit was instituted on the twelfth day of October, A. D. 1868, a lapse of three years and nine months after the accrual of the right to sue. But suppose that the statutes of limitation were dormant until the second of September, 1866, when they were set in operation by the ordinance of the convention, and other constituted authorities, still two years, one month and ten days had elapsed, and the claim was as effectually barred as if twenty years had passed.

The statute of two years is insisted upon, because this was as any other claim for money or personal property, and was supported by no promise in writing, or otherwise than the implied promise in law, nor by any trust or other thing whatever, as is apparent from the face of the affidavit of authentication accompanying the claim. The right of appellee to recover was precisely the right of any other partner upon the dissolution of partnership and division of assets. The court will also observe that the presentation to the executor was on the tenth of October, A. D. 1868.

2. It is insisted that the judgment of the district court is manifestly and fatally defective also, in this, that appellee recovers against R. & D. G. Mills the whole of the money in their hands, while the very evidence by which she proves her right to any portion of it establishes that one-half of that fund belonged to the estate of David Randon, deceased, which no court had authority to take out of the control of the executor of D. Randon. If appellee had any right at all it was to a common interest with D. Randon's executor. Now, this is apparent for these reasons: the district court did not and could not know, because there was neither allegation nor proof on the subject, whether the estate of D. Randon was solvent or insolvent. If the estate was insolvent, then the preferred claims as enumerated in the statute were first to be paid, and how could the court know whether there was or not other money or property with which to pay them? How could the court know that all the debts of community were paid?

Ballinger, Jack & Mott, for the appellee.

I. We think there is but one point in the case, viz.: whether the plaintiff's cause of action was barred by limitation. It was not, because it was founded on the writing signed by the parties May 1, 1861. The parties had the capacity and the right, at that date, to settle and determine, as between themselves, their respective rights and interests in their community property and to release and convey to each other. This they did, by agreeing to a certain division of their slaves, and to divide their plantation in a particular manner, also upon certain other particular provisions as to certain items of property, and then to divide equally all the other community property. This fixed their rights in accordance with that agreement.

The parties might have made any other agreement in good faith, and it would have been legal and effectual. They might have divided the plantation and slaves in a different manner or proportion. They might have agreed that all the cattle should be the property of one, and all the horses the property of the other; or they might have agreed...