Cartwright v. Cartwright

• Decision Date: 01 January 1857
• Citation: 18 Tex. 626
• Parties: WILLIFORD CARTWRIGHT v. PINK CARTWRIGHT.
• Court: Texas Supreme Court

18 Tex. 626

WILLIFORD CARTWRIGHT

v.PINK CARTWRIGHT.

Supreme Court of Texas.

1857.

Under the laws in force in this country as well before as since the year 1840, the slaves owned by the husband or wife before marriage, remained his or her separate property; and the children of such slaves, born after the marriage, were and are the separate property of the owner of the mother.

Error from Montgomery. Tried below before the Hon. Peter W. Gray.

Suit by defendant in error against plaintiff in error, for divorce, commenced August 24, 1853. Plaintiff and defendant were married in what is now Montgomery county in this state, in 1834. The defendant owned, before marriage, a slave, Jane, and her child, Mary. Each of the parties also owned a few cattle, hogs, etc. Since then, there had been born of the said Jane, and were still living and in possession of defendant, Tamer, aged 18 years; Harriet, aged 16 years; Sarah, aged 14 years; Clarissa, aged 11 years; of the girl Mary, a child two years old, and another, an infant. There was a league and labor of land, the headright of defendant, some other land, cattle and horses, admitted to be common property, unless the plaintiff's right thereto were defeated by a plea which defendant filed, that the plaintiff had been married to one James Bird, in the state of Alabama, in 1827, and was his lawful wife at the time of her putative marriage to defendant, wherefore defendant prayed that his marriage with plaintiff be declared null, etc. There were several children, the last of whom was born in 1848.

The grounds of divorce were that defendant in 1848 falsely accused plaintiff of infidelity to the marriage vow, denied the paternity of the child born in 1848, abandoned the bed and board of plaintiff, and lived in improper intimacy with the negress Jane, etc.

Special issues were submitted to the jury, under the direction of the court; all of which were found in favor of the plaintiff. The court thereupon decreed a divorce, as prayed by plaintiff; assigned the slaves Jane and Mary to the defendant, but decreed that their children should be equally divided between the plaintiff and defendant, with the other common property, etc.

L. L. Bradbury and H. N. & M. M. Potter, for plaintiff in error.

N. H. Davis, for defendant in error.

HEMPHILL, CH. J.

I shall examine, first, the main question in this case, and that is, whether, under the laws of Spain, in force at the time of the marriage, the children born since the marriage, of female slaves, who were the separate property of the husband, became a portion of the community, or were the separate property of the husband.

It is a principle of the Roman and Spanish law, and has been engrafted on the law of slavery as it exists in the United States, that the children of a female slave follow the condition of their mother; they consequently become slaves, and belong to the owner of the mother. It is also a principle of the Spanish, as well as of the common law, that ownership or property in a thing gives the right to enjoy and dispose of it freely, so far as it may not be prohibited or opposed by the law. L. 27, tit. 2, L. 1, tit. 28, Part. 3; L. 10, tit. 33, Part. 7; and that ownership of a thing gives a right to everything which it produces, or is incorporated with it by accession, whether it be by the work of nature or by that of our own hands. Escriche, verbo “PROPRIEDAD.”

Ownership, or dominion, is of two kinds--perfect and imperfect. We have seen that perfect ownership includes the jus desponendi, of receiving the fruits of every description produced by the thing directly or indirectly. Of imperfect ownership, we shall refer only to the usufructuary right, and it will be seen that it is of importance that the right of the usufructuary, under the Spanish law, should be fully understood, as it is conceived, there is a striking analogy between the relation which he bears to the owner of the property, and that which the community bears to either the husband or wife, as the owner of separate property.

Usufruct is defined by Escriche, as the right of using and enjoying, and receiving the profits of, property which belongs to another; and a usufructuary is one who has the usufruct or right of enjoying anything in which he has no property. The usufructuary has a right to all the fruits produced by the subject of usufruct, whether they be natural, that is, produced spontaneously by the earth or animals, as timber, herbs, fruits, wool, milk, and the young of cattle; or industrial, that is, produced by cultivation, as crops of grain, etc.; or civil, viz.: rents, as the hire or rents of houses, freights, revenues from annuities, etc., and from other effects or rights. Escriche verbo USUFRUCTUARIO.

But notwithstanding these enlarged rights of the usufructuary owner, to the produce or fruits of the subject of usufruct, yet there is one exception, viz.: the child born of a slave of whom one has the usufruct, shall belong to the master of the slave and not to the usufructuary. Law 23, tit. 31, Partidas 3d, is to the effect, that when a man has a right to the usufruct or labor of a slave of another, he will acquire all the slave gains by his manual labor, or by means of funds belonging to the usufructuary. But the gains made by a slave, from what was given or left him by will, belong exclusively to his master, unless the donation or legacy was made with the intention that they should belong to the usufructuary, or he who enjoyed the use of a slave; in which case they will acquire the property therein. We likewise say that notwithstanding a child be born of a slave, of whom one has the usufruct, and while the mother was in the power of the usufructuary, such child will belong to the master of the slave, unless he had expressly agreed that the usufructuary should have it.

As the claim of the community to the children of a female slave, the separate property of one of the partners, is deduced from the rule that the community is entitled to the fruits of the separate property of each partner, I will examine in this place, whether either in Roman or Spanish law, the increase of slaves was regarded as a portion of the fruits of usufructuary property, or whether they were not expressly reserved for the owner in every provision in which the issue of slaves was mentioned in connection with the other fruits of property held in usufruct. In the Institutes of Justinian, lib. 11, tit. 1, sec. 37, which treats, in connection with the two foregoing sections, of the right of the usufructuary possessor to the fruits of the property, it is said that among the fruits or produce of animals we not only reckon milk, skins and wool, but also their young, and therefore lambs, kids, calves, colts and pigs appertain, by natural right, to the usufructuary; but the offspring of a female slave cannot be thus considered, but belongs to the proprietor of such slave. Cooper's Justinian, p. 83.

We may refer, also, to the usufructuary right which the husband has in the dote, or dowry, brought by the wife, under some contract to support with its fruits the charges of the matrimony, as there is a striking analogy between the rights of the husband to the fruits of this property, and the rights of the community to the fruits of the separate property of husband or wife.

During the marriage, the husband has the exclusive administration of the property brought in dowry by the wife, whether it be brought in with or without appraisement, and the right to receive all its fruits, natural, industrial or civil, to maintain with them his wife, children and family. Escriche, verbo DOTE. This author enumerates these fruits in detail, among which are the profits acquired by the industry of slaves, but there are excepted from the fruits to be received by the husband, the donations or legacies made to slaves, and the children of the female slaves. These consequently will belong to the wife, who is the owner, and not the husband, who has only the usufructuary right in the dowry. In Part. 4, tit. 11, law 20, it is said: “As it sometimes happens that women give female slaves in dowry to their husbands, we shall therefore speak of them in this place; and we say that if a wife give a female slave to her husband, appraising her value at the time, and the husband promises to give her the amount of the appraisement of such slave when the marriage comes to be dissolved by death or a judgment of the court; in that case the profit or loss happening on account of the slave, will be for the husband. And so if the slave should have children, they will also belong to the husband; but if the husband takes upon himself the risk of the decrease of value only of the slave, and not of her death, or the risk of her death, and not of the decrease of her value, in that case, although the slave had been appraised, the child or children born of her, will not belong to the husband, but to the wife; and if the wife had not given the slave to her husband with the appraisement of her value, then the profit or loss arising from such slave, will be for the wife and not for the husband.” In law 25th of same title, it is said, “Three things are necessary for the husband, in order that he may acquire the fruits of the dowry given him by his wife. The first is, that the marriage be contracted, the second that he be put in possession of the dowry, the third that he sustain the burthen of the marriage, in supplying his own wants and those of his wife, children, and the rest of the family. These three things concurring in favor of the husband, he ought to have the fruits of the dowry given to him by the wife, whether its value had been appraised or not, save what is said in the law which spoke of the children of a slave which had been given in dowry, where it is said they ought not to belong to the husband unless he had taken upon himself the risk of the deterioration and death of the slave, nor ought the husband to have...