Claiborne v. Susan C. Tanner's Heirs

• Decision Date: 01 January 1856
• Parties: PHIL. CLAIBORNE AND OTHERS v. SUSAN C. TANNER'S HEIRS.
• Court: Texas Supreme Court

18 Tex. 68

PHIL. CLAIBORNE AND OTHERS

v.SUSAN C. TANNER'S HEIRS.

Supreme Court of Texas.

1856.

Where the deed to real property is taken in the name of the wife, and part only of the purchase money or consideration is her separate property, and her husband gives his note for part of the purchase money, upon which judgment is afterwards obtained, without making the wife a party to the suit, a sale by virtue of execution on such judgment will only pass the interest of the community, and a separate interest of the husband, if any, and not the separate interest of the wife, corresponding to the proportion of the consideration paid out of her separate property. 15 Tex. 143, 369.

Where the father of the wife loaned a certain slave to her and her husband in Alabama, and they brought said slave to Texas, without the father's consent, and in 1841 the husband and wife joined in a bill of sale of him in part payment of a tract of land, the deed for which was taken in the name of the wife, and in 1842, before the father's claim was barred by limitation, he released said slave to the wife without price, it was held that the rights of the wife in the land, for which the slave was given in part payment, were the same as if there had been no adverse possession of the slave by the husband and wife, and the gift to the latter had been made before the purchase of the land.

See this case for what is said as to circumstances which will cause the adverse possession of a slave by the husband and wife to enure to the benefit of the latter, so as to make the slave her separate property.

Where the issue was as to whether a slave which had been given in part payment for the land in controversy, was the separate property of the wife or not, and the trial was at the fall term, 1854, and the representatives of the wife proved by oral testimony, without objection, that in 1842 the wife wrote to her father in Alabama asking him to give her the slave, and he gave her the slave, it was held that the court properly refused to instruct the jury, that if they believed from the evidence that letters were written between the father and wife in relation to the slave, then the failure to produce said letters in evidence, without good excuse, raised a presumption in law against the oral testimony introduced to prove the contents of the letters, and that the jury were authorized, from such circumstances, to regard the oral testimony with suspicion.

There can be no clearer principle, than that, where a jury has intervened, and all the issues have been submitted to their decision, their verdict must constitute the basis of the judgment. The court cannot look to the evidence on which the verdict was found, in order to determine what judgment to render, but must look alone to the verdict. 21 Tex. 668.

Where the plaintiffs claimed under the wife, and the defendants under the community, and the jury found a special verdict that the land was paid for by a slave, the separate property of the wife, and a yoke of oxen, the property of the community, without finding the value of either, it was held that the court could not look to the evidence, although there was no conflict, to ascertain the respective values of the slave and oxen, in order to make up the decree; and a new trial was ordered.

Error from Travis. Tried below before the Hon. John Hancock.

Suit by defendants in error against the plaintiffs in error to recover six hundred and forty acres of land.

The petition alleged that Susan C. Tanner, the mother of the plaintiffs, died on the____day of____, 184--(by amendment afterwards alleged to have been the latter part of the year 1847), seized and possessed of the land in controversy as her separate property; that on the 10th day of March, 1843, James Craft had obtained a judgment for $660.13, against Joseph R. Tanner, the husband of Susan C. Tanner, which said judgment remained unsettled until after the death of said Susan, when the same was revived, and execution issued thereon, and levied upon the land in question, which was sold, and Philip Claiborne and William S. Oldham, the defendants, became the purchasers, for the price of $900. The petition further alleged that the sale was null and void, and prayed the court to set it aside and decree the land to be the property of the plaintiffs in right of their mother.

The answer denied that the land was the separate property of the said Susan C. Tanner at her death, but alleged that it was community property between her and her husband, and as such liable to Craft's execution, which defendants alleged was issued on a judgment recovered on a note given in part payment for this same land. The answer admitted the other facts alleged in the petition.

Trial at the fall term, 1854. The evidence was as follows:

Conveyance of the land in controversy, dated 12th day of May, 1841, by James H. Haynie to Susan C. Tanner, for the consideration of twenty-two hundred dollars, expressed therein.--Filed for record same day.

John Caldwell, a witness for the plaintiff, testified that he received from Joseph R. Tanner a negro boy named Frederick and a yoke of oxen, and gave up a note for twenty-two hundred dollars, which had been given to James H. Haynie for the land in controversy; that the conveyance of the negro was signed by Mr. and Mrs. Tanner; that witness had sold to Haynie a league of land of which the tract in dispute formed a part; that Haynie being still indebted to him for the league of land, a proposition was made to him by Haynie and Tanner to take the boy Frederick at the amount that was due Haynie (from Tanner) on the tract of land, say twenty-two hundred dollars; that he took the boy and a yoke of oxen, and allowed Haynie credit for the full amount of Tanner's note, say $2,200; that he did not estimate the property to be worth so much in money; would not have valued the boy at more than $600, and the oxen at $40. Did not know whether the boy belonged to Mr. or Mrs. Tanner; the bill of sale was signed by both; still owned the negro; he was thirty-five years old and crippled, which depreciated his value one-half; that when he received him, he was as likely a young negro as could be seen anywhere, but was slightly lame; did not then inquire into the cause, not thinking it serious. Could not say positively, but was strongly impressed with the belief that the note for $2,200 was executed by Tanner to Haynie; thinks it was given up to Tanner at the time he, witness, received the negro. Executed no title, that he recollected, to Mr. or Mrs. Tanner; did not know why or under whose direction or desire the title was made to Mrs. Tanner.

The bill of sale from Joseph R. Tanner and Susan C. Tanner to Caldwell for the boy Frederick, was dated May 6th, 1841, recited a consideration of twenty-two hundred dollars, and warranted the slave sound and healthy.

Joseph Harris, for plaintiff, testified that Susan C. Tanner was his daughter; knew the negro, Frederick; had owned him in Alabama in 1838 or 1839; was the separate property of Susan C. Tanner; that witness gave the same negro to said Susan in August, 1842; she and her husband, Joseph R. Tanner, were then residents of Texas; loaned the negro to them in Alabama in 1838 or 1839, for the purpose of learning a trade; soon after loaning the negro, Joseph R. Tanner brought the negro to Texas without the knowledge or consent of witness. In 1842, Susan C. Tanner wrote to witness, asking him for the boy, which he gave her, and told her to sell him, and get a piece of land for a home; when Susan wrote for the boy, witness was on the eve of starting to Texas for him.

It was admitted that the execution under which the defendants claimed the land, was on a judgment rendered on a note, which was given in part consideration of the land. It was admitted that defendants purchased as alleged in the pleadings.

The judge instructed the jury, without request, as follows:

In order to enable you to ascertain the rights of the parties to this tract of land, it will be necessary for you to determine from the evidence the character of the property in the land, as between Joseph R. Tanner, and his wife Susan. The deed executed by Haynie to Mrs. Tanner, during coverture, would vest the title to the land in her and her husband jointly as community property, either having an equal interest therein, unless it is made to appear that the consideration for the purchase of the land, was the separate property of the wife. The separate property of the wife is all the property she has at the time of marriage, or may acquire subsequent to marriage, by gift, devise or descent. Property acquired during coverture, by either the husband or wife, in any other manner than by gift, devise or descent, is presumed to be the community property belonging in equal interest to the husband and wife, and is subject to forced sale under execution, etc., in payment of community debts. To rebut this presumption of the character of the property, acquired by deed of conveyance to one of the parties, as in this case, during coverture, the party claiming the property thus acquired, must show by clear and satisfactory testimony, that the money or effects that went for the purchase of such property, was the separate property of the one setting up the claim; when, the property thus acquired would be the separate property of the one to whom the money or effects belonged.

A married woman, residing in Texas, at any time acquiring property by...