Braden v. Gose

• Decision Date: 25 April 1882
• Docket Number: Case No. 4503.
• Parties: MARY E. BRADEN ET AL. v. JOHN E. GOSE ET AL.
• Court: Texas Supreme Court

57 Tex. 37

MARY E. BRADEN ET AL.

v.JOHN E. GOSE ET AL.

Case No. 4503.

Supreme Court of Texas.

Apr. 25, 1882.

APPEAL from Lamar. Tried below before the Hon. R. R. Gaines.

The following presents the case as agreed upon by counsel:

“This suit was instituted on the 22d of June, 1880, in the district court of Lamar county, by Mary P. Braden, joined by her husband, S. Braden, against John A. Gose, sheriff of Lamar county, E. D. Scales, who resided in Lamar county, Texas, and one N. Van Beil, who resided in the city of New York, to enjoin the sale of sixty-eight acres of land situate in Lamar county, Texas, levied upon by the said John A. Gose, sheriff, on the 14th day of June, 1880, by virtue of an execution issued out of the county court of Lamar county, upon a judgment in favor of E. D. Scales, for the use of Van Beil, against the said S. Braden and one O. H. Hall, rendered on the 28th day of January, 1880. The plaintiffs claiming that the land was the separate property of the said Mary P. Braden, and purchased with her separate money on the 24th day of January, 1880, was not liable for the debts of her husband, S. Braden, and that a sale of the same under execution would cast a cloud upon her title. The injunction was granted as prayed for in the petition, by the Hon. R. R. Gaines, judge of the sixth judicial district.

It is agreed that the defendant Scales, for the use of Van Beil, had a valid judgment against the plaintiff S. Braden (the husband of plaintiff Mary P. Braden) and O. H. Hall, rendered in the county court of Lamar county on the 28th day of January, 1880; that a valid execution issued on said judgment and was levied on the said sixty-eight acres of land on the 14th day of June, 1880, by John A. Gose, sheriff of Lamar county, and that the said sheriff had advertised to sell the land. It is agreed that the said land was purchased by the said Mary A. Braden on the 24th of January, A. D. 1880; that she paid $1,200 for said land, and the deed was made to her and purported to be in consideration of $1,200; that $800 of the consideration paid for said land was a gift to the said Mary P. Braden from her brother-in-law, J. L. Garrett, given to her after her marriage, but several years before the purchase of the land, as her separate means; that the balance of the consideration paid for said land was the accumulated interest on said $800, which had been loaned by said Mary P. Braden from year to year; that no other consideration went into the land except the original gift and the interest arising therefrom. It is agreed that the said Mary P. Braden filed, and had recorded in accordance with law in Lamar county, Texas, a schedule of her separate property, showing the said sixty-eight acres of land as her separate property; that said schedule was on record at the time the execution was levied on the land, but not filed for record at date of judgment; but it is agreed that defendants had no judgment lien on the land. The date of the note on which defendants' judgment was rendered is July 28, 1877. Upon the above state of facts this court held that one-third of the sixty-eight acres of land was community property of plaintiff Mary P. Braden and S. Braden, and liable for defendants' execution, and dissolved the injunction.”

(Signed by attorneys of record and approved by the presiding judge.)

Dudley & McDonald, for appellants.

I. Money acquired by the wife after marriage by gift from her relative is the separate property of the wife; and if the husband takes no control of the money thus acquired, and the wife puts the same at interest in her own name from year to year for several years, and collects the interest thereon, it being the intention of the husband that the interest arising from the money so acquired and loaned out by the wife should be and remain the separate property of the wife, the original gift, as well as the accumulated interest thereon, is the separate money of the wife, and property purchased therewith in the name of the wife belongs to the separate estate of the wife, and is not liable to the debts of the husband. Const. of Texas, art. XVI, sec. 15; Hall v. Hall, 52 Tex., 294;Story v. Marshall, 24 Tex., 305;Merrett v. Lyon, 3 Barb. (N. Y.), 110;George v. Ranson, 15 Cal., 323;Kraemer v. Kraemer, 52 Cal., 302;Hart v. Robertson, 21 Cal., 346;Ramsdell v. Fuller, 28 Cal., 37.

II. Where the husband takes no control over the separate money of the wife, but permits the wife to lend the same for a series of years, and afterwards to invest the principal and interest in land and take a deed to the same in her own name and schedule the same as her separate property, the law will presume as between husband and wife and those not claiming as innocent purchasers, that the husband intended that the interest arising from the separate money of the wife or property purchased therewith should be the separate estate of the wife. Parker v. Nolan, 37 Tex., 85;Higgins v. Johnson, 20 Tex., 389;Story v. Marshall, 24 Tex., 305;Smith v. Boquet, 27 Tex., 507.

III. If there was any interest in the land belonging to the community estate of Mary P. and S. Braden, it was a mere equity, and not such an interest as is subject to sale under execution. Hendricks v. Snediker, 30 Tex., 306;Daugherty v. Cox, 13 Tex., 212; Edwards and Elmer and Breem v. Norton, 5 Tex. Law Jour., 117; Freeman on Executions, secs. 187, 188; Perry on Trusts, secs. 132, 133.

IV. The court should have perpetuated the injunction according to its own finding as to two-thirds of the land in controversy, and adjudged the cost against the defendants. R. S., art. 2874.

V. Injunction is the proper remedy for a married woman to prevent the sale of her separate property taken under execution for her husband's debts. Whitman v. Willis, 51 Tex., 428;Baxter v. Dear, 24 Tex., 21;Stoddart v. McMahan, 35 Tex., 299; Freeman on Executions, secs. 438, 439.

E. D. Scales and J. P. Graham, for appellees.

STAYTON, ASSOCIATE JUSTICE.

This action was brought by the appellants to enjoin the sale of sixty-eight acres of land which had been levied upon by the appellee, John A. Gose, as sheriff of Lamar county, to satisfy an execution in his hands in favor of E. D. Scales, for the use of Van Beil, issued upon a judgment against Sarge Braden, who is the husband of Mary P. Braden, who claimed the property in her own separate right.

The judgment in favor of Scales was rendered on the 28th day of January, 1880, upon a note executed on the 28th day of July, 1877.

The land in controversy was purchased and deed taken in the name of Mary P. Braden on the 24th day of January, 1880, and was paid for with $800 which a relative of hers had given to her after her marriage, and by $400, which was interest that had accrued upon the $800, the same having been loaned at interest from the time it was given to the wife.

The judgment against the husband had never been registered, so as to give a lien upon the property, and the land had been scheduled by Mary P....