Carr v. Tucker

• Decision Date: 01 January 1874
• Parties: R. P. CARR v. FRANCES TUCKER AND HUSBAND.
• Court: Texas Supreme Court

42 Tex. 330

R. P. CARR

v.FRANCES TUCKER AND HUSBAND.

Supreme Court of Texas.

1874.

APPEAL from Victoria. Tried below before the Hon. T. C. Barden.

This was an action brought by Frances Tucker and her husband, J. W. Tucker, against Robert T. Carr, to recover two horses, a wagon, harness, etc., alleged to be the separate property of Frances Tucker. A writ of sequestration was sued out, and the defendant giving a replevy bond retained possession of the property.

Carr claimed the property by purchase from the husband, J. W. Tucker, or from his agent, Jones, alleging that the property was community property, or if the separate property of the wife, that she assented to and approved the sale.

On the trial the jury found for the plaintiff, the aggregate value of the property as fixed by them being three hundred and twenty-three dollars; the use of the property was assessed at two hundred and ten dollars and fifty cents, for all of which judgment was rendered for Mrs. Frances Tucker.

It appeared that Jones, as agent of J. W. Tucker, had sold Carr the wagon and team, etc., for two hundred and fifty dollars, which sum Carr insisted, in pleading and evidence, he should be allowed to recoup against damages for the use of the property while kept from the possession of the plaintiff, Frances Tucker.

The admission on the part of plaintiff of evidence of value of the use and hire of the property, and the refusal by the court to allow the debt of Carr to be set off against the hire, was assigned as error.

Glass & Callender, for appellant.

Philips, Lackey & Stayton, for appellees.

In this case there are two questions presented for the consideration of the court:

First. Was the hire of the horses sued for the separate property of the wife?

Second. Was the hire of the horses liable to the claim of the defendant Carr, as set up in his plea of reconvention?

The decision of the first question depends on the construction of Article 12, Section 14, of the Constitution of 1869. Since the adoption of this Constitution, what is and what is not community property has not been decided by statute or by judicial decisions. The Act of March 13, 1848, and all the decisions made on this subject, were based on the Constitutions of 1845 and 1866. It may be conceded, therefore, that under these Constitutions, and that Act of the Legislature, the hire of the horses, as claimed in this case, was community property; but a reference to these Constitutions, and a comparison of the language used in them with the language used in the Constitution of 1869, will show at once that the Convention of 1869 intended, and did enlarge the protection theretofore given to married women in their rights of separate property. In the two first of these, in 1845 and in 1866, the term “increase” is not used at all. We first find it in the law of March 13, 1848, and then it refers to “land and slaves” only, and the second section of the Act defines what shall be community property. (Paschal's Digest, Articles 4641-2.) Now, the clause in the Constitution of 1869 reads as follows: “The rights of married women and their rights of property, real and personal, and the increase of the same, shall be protected by law.” (Const., 1869, Article 12, Section 14).

Here the word “increase” is used for the first time in any Constitution, and refers, not, as in the Act of 1848, to lands and slaves only, but to all personal property, of whatever character or description it may be.

The court will bear in mind, that the Act of 1848, which first uses the term ““increase,” restricts it to lands and slaves, and then in the second section of the Act defines what shall be considered community and what is separate property, and that the Constitutions of 1845 and 1866, in which the term ““increase” is not used, are the basis of all the decisions our Supreme Court has made on the question now presented for adjudication in this cause. With the difference, then, between the organic laws, under which these decisions were made, can they be invoked, with any show of reason, to sustain the claim of the defendant Carr in his plea in reconvention? Do they sustain the claim set up, that the hire of the horses was community property? The leading cases on this subject are those of De Blane v. Lynch, 23 Texas, p. 26, and Forbes v. Durham, 24 Texas, 612.

In the case of De Blane v. Lynch, Justice Bell discusses the meaning of the term “increase,” as used in the Act of 1848. He says: “It cannot be doubted that the word ‘increase,’ as applied to land or to the soil, means ‘that which is produced by the cultivation of it.’ * * * * But to adopt this use of the word ‘increase,’ as used in our statute, accordingly, would, we think, be wholly inconsistent with the recognized principles of law upon which the system of community is based.” Proceeding further, he says: “The principle which lies at the foundation of the whole system of community property is, ‘that whatever is acquired by the joint effort of the husband and wife, shall be their common property.’ 'DD'

With regard to this opinion we have to remark,

First. That the Constitution of 1869, in its terms, seems to have changed the then “recognized principles of law” inconsistent with the true meaning of the word “increase.”

Second. The framers of the Constitution of 1869 evidently intended to repeal such portions of the Act of 1848 as might be “inconsistent” with the terms they used, and, by using the word “increase” in the organic law, put it out of the power of the Legislature and the courts to restrict the protection of the rights of married women, which it was their purpose to extend.

Third. The word “increase,” as used in the Constitution of 1869, was, no doubt, intended to repeal or do away with all decisions theretofore made on the subject of the increase of land, as well as to extend protection to personal property and its “increase.”

Then, if this be so, the meaning of the word as given by Justice Bell, not being inconsistent with the present system under the new Constitution, but conforming thereto, may well be considered, as to land, “that which grows out of it or that which is produced by the cultivation of it;” and as to personal property, “any profit, interest or revenue, that may arise from its use.” That use is as much protected as the property itself. Both stand on the same ground. Indeed, the “use,” in most personal property, constitutes its value. Take away the use, and, in many cases, you take away the right. In the absence of a law or contract to the contrary, the ownership carries with it the use or compensation for the use. This is the general rule. If the case at bar is an exception, it devolves on the appellant to show it. The statute of 1848 cannot be invoked for that purpose, for it is silent as to increase of personal property, and is otherwise inapplicable. The decisions heretofore made on the subject cannot be invoked for that purpose, as they, if thus applied, would render the provision in the Constitution of 1869 dormant and inoperative. No contract can be shown, or any agreement to that effect, as in this case the entire control of the horses was taken away from the plaintiff during the pendency of the suit, when the hire occurred. After the horses were seized the defendant replevied them, and used them until he sold them. Both the husband and the wife were alike removed from the possession and control of the animals. There was no joint effort on the part of the husband as to the hire, which lies at the...