Castro v. Causici

• Decision Date: 01 January 1858
• Citation: 22 Tex. 479
• Parties: HENRY CASTRO AND OTHERS v. JOHN H. ILLIES. ANGELO CAUSICI AND OTHERS v. JOHN H. ILLIES.
• Court: Texas Supreme Court

22 Tex. 479

HENRY CASTRO AND OTHERS

v.JOHN H. ILLIES.

ANGELO CAUSICI AND OTHERS

v.JOHN H. ILLIES.

Supreme Court of Texas.

1858.

When a judgment of the district court is not superseded, upon prosecuting a writ of error, it authorizes the issuance of an execution; and it cannot affect the title of the purchaser, at the sale under it, that property was not sold under the decree (a judgment of foreclosure of a mortgage) to which the defendant had no title, and upon which the decree could not legally operate, or which was not subject to seizure and sale on execution, under the decree.

A judgment of foreclosure erroneously decreed the sale of land, not embraced in the mortgage, in lieu of a part of the mortgaged premises, for which the defendant's title had failed--from which judgment the defendant had prosecuted a writ of error (without a supersedeas), and the land, as decreed, having been sold under an order of sale, without satisfying the judgment, the plaintiff sued out executions, under which he purchased lands of the defendant, not included in the mortgage: Held, that the reversal of so much of the judgment of the district court, as ordered the sale of the lands embraced in the mortgage, did not affect the title of the plaintiff to those purchased by him, under the executions. 24 Tex. 526.

In the absence of an express contract, the marital rights of persons married in other countries, who have become domiciled here, are to be governed, as to all after acquisitions of property, by the law of community of this state.

The general rule, irrespective of the effect of a change of domicile is, that where there is an express nuptial contract, “if it speak fully to the very point,” it will generally govern all the property of the parties, not only in the domicile, but in every other place, under the limitations and restrictions which apply to other contracts. “It will act directly on movable property every where; but as to immovable property in a foreign territory, it will at most only confer a right of action, to be enforced according to the lex loci rei sitæ.'DDDD'

But where there has been a change of domicile, though there be an express contract, if it do not expressly provide, or the intention be not manifest, that it is to apply to and govern all after acquired property, wherever the parties may reside, it will not affect real property situate in the new domicile.

And such seems to be the rule with reference to personal property, in Louisiana; the decisions of whose courts, from the similarity of its former laws and legislation with our own, are entitled to the greater weight.

Where, in the contract, there is a reference to the law of the country, and a declaration of intention to be governed by its provisions, with certain modifications therein expressed, the inference would seem to be, that the parties did not contemplate a change of domicile, and did not contract with reference to their after acquisitions, in case of removal to another country.

But whatever may be the rights of the parties to such a contract, executed in the matrimonial domicile, as between themselves and their representatives, it cannot govern their real property, acquired and situate here, to the prejudice of the rights of other citizens, who have contracted on the faith of the property, and without notice of a contract establishing a rule for its government, variant from the law of the land.

And notwithstanding it was stipulated in such a nuptial contract, that there should not be a community in the future acquisitions of the spouses, where real estate was conveyed to the wife, after their removal to this state: Held, that the legal presumption applied with its full force, that it was community property; and that it devolved upon her to repel this presumption, by clear and satisfactory proof, that it was purchased with her individual money or means, if she claimed it as her separate property.

The doctrine of tacit mortgage cannot be invoked in this state, in favor of a wife against a creditor of the husband.

To sustain a conveyance, impeached for fraud, it is not enough that it be upon a good consideration; it must be bona fide also, and not made to hinder, delay, or defraud creditors. 28 Tex. 759.

When a wife is the beneficiary in a deed of conveyance from her husband, which is impeached by a creditor for fraud, from the relations of the parties, it is scarcely to be supposed, that the circumstances and intentions of the grantor were unknown to her.

When a contract has been admitted in evidence, and is before the jury for their consideration, the court may very properly decline to call their special attention to it, by instructions as to the weight to which it is entitled, or the purposes for which it may be used.

APPEAL from Bexar. Tried below before the Hon. Thomas J. Devine.

These suits were brought by Illies against Henry Castro and his wife, Amalie Mathias Castro, and Angelo Causici, for the recovery of a number of lots and tracts of land, described in the petition, and claimed by the plaintiff, Illies, under purchases made at sheriff's sales, by virtue of executions on a judgment rendered on the 25th of June, 1852, by the district court of Bexar county, in favor of Illies against the defendant, Henry Castro. He also averred that the defendants, Causici and Amalie Mathias Castro, claimed the lands under two several trust deeds, executed by the defendant, Henry Castro, to Causici, for the said Amalie; which deeds, he alleged, were fraudulent and void, and were made without consideration, with the intent to delay, hinder and defraud creditors. It was also alleged, that Mrs. Castro claimed one of the tracts of land sued for, as her separate property, under a deed from J. B. Lacoste to her, but that the said land was the community property of the said Henry Castro and wife.

The defendants answered, that the plaintiff's pretended title was null and void, inasmuch as the judgment under which the executions were issued, had been reversed by the supreme court; that the said trust deeds were bona fide, and made upon a full and fair consideration, paid out of the separate property of Mrs. Castro; that the land purchased from the said Lacoste, was also paid for with her separate moneys; and that the marriage contract between them, entered into in the city of Paris, France, in 1813, was in full force, and formed the rule and law of her separate property, etc.

The pleadings set forth very fully the grounds relied upon by both parties, but this summary of them is believed to be sufficient, for the proper understanding of the matters in controversy.

The two cases were submitted together to the jury, with an agreement that one verdict and judgment should be rendered in both of them.

It appeared, from the statement of facts, that there was a judgment rendered by the district court of Bexar county, on the 25th of June, 1852, in favor of Illies, against Henry Castro, for $20,228.43, with a decree foreclosing two mortgages, given to secure the same, upon 52,500 acres of land; and it appeared, from the verdict in this case, that Castro's title to some of the lands, as described in the mortgages, had failed, or that he had acquired other lands in his (Castro's) colony, under the legislation had with reference to the said colony, in their stead. The district court decreed that the lands owned by Castro, embraced in the mortgage, together with the other lands which it decreed had been substituted in place of those, for which his title had failed, should be sold in satisfaction of the judgment; and ordered execution to issue for any balance that might remain unpaid.

From this judgment Castro prosecuted a writ of error to the supreme court (without, however, superseding the judgment), where so much of the judgment as ordered the sale of other property, than that embraced in the mortgages, was reversed, but as to all other matters, it was affirmed. It did not appear from the record in this case, when the said writ of error was sued out; but from the statements in the brief, and the charge of the court, it was in August, 1853. The case was decided in the supreme court on the 21st of December, 1854, and is reported in 13 Tex. 229.

On the 8th day of June, 1853, an order of sale was issued by the clerk of the district court of Bexar county, directing the sale of the lands as described in the judgment of the district court; and on the 5th of July, 1853, the sheriff sold the whole of the said lands for the sum of $3,695.40.

On the 11th of July, 1853, an execution was issued on the judgment, under which the sheriff, on the 4th of October, 1853, sold, as the property of the said Castro, other lands, not included in the mortgages, among which were those described in the first of these petitions, and which were purchased by Illies.

On the 10th of November, 1853, execution was again issued for the balance remaining unpaid upon the said judgment, under which the sheriff, on the first Tuesday in December, 1853, sold as the property of Castro, still other lands, not included in said mortgages, among which were the lands described in the petition in second of these causes, and which were also purchased by Illies.

The first of the said trust deeds was executed on the 20th of April, 1848, and was as follows:

“Know all men by these presents, that in consideration that Henry Castro, of the county of Medina, state of Texas, formerly of the city of Paris, and kingdom of France, at the time of his marriage with Amalie Mathias, his present wife, in the year 1813, did receive of the said Amalie Mathias, 50,000 frs., it being the separate property of his said wife, and which of right belongs to her, together with legal interest, and which the said Henry justly owes to the said Amalie Mathias: Now, for the purpose of paying off and discharging that debt, the said Henry Castro, of the first part, conveys, transfers, and alienates unto Angelo Causici, in trust for...