Clardy v. Wilson

• Decision Date: 02 June 1900
• Parties: CLARDY et ux. v. WILSON.
• Court: Texas Court of Appeals

58 S.W. 52

CLARDY et ux. v. WILSON.

Court of Civil Appeals of Texas.

June 2, 1900.

Appeal from district court, Johnson county; J. M. Hall, Judge.

Action by H. S. Wilson against N. L. Clardy and wife in trespass to try title to certain real estate. From a judgment for plaintiff, defendants appeal. Reversed.

Ramsey & Brown and W. J. Ewing, for appellants. Plummer & Green and Poindexter & Padelford, for appellee.

TEMPLETON, J.

The appellants, N. L. Clardy and M. J. Clardy, are husband and wife. They were married in Tennessee, and emigrated from there to Texas. They bought lands in Johnson county, taking the deeds in the wife's name. The appellee, H. S. Wilson, became a creditor of N. L. Clardy. He brought suit on his debt, and caused an attachment to be levied on the said lands. The suit progressed to judgment with a foreclosure of the attachment lien. Wilson bought at the foreclosure sale, and brought this suit against the Clardys to recover the lands so bought. He obtained judgment for all the lands sued for in excess of the homestead. The Clardys claimed that the lands were paid for with money inherited by Mrs. Clardy from her grandfather, and were, therefore, her separate property, and not liable for the payment of her husband's debts. Wilson claimed that, if any of the money inherited by Mrs. Clardy from her grandfather was paid on the lands, she received the money while living in coverture with her said husband in Tennessee; that the common law was then in force in that state; and that the money so received became and was, in consequence, the property of her husband. After the Wilson debt was incurred, but before the attachment was levied, N. L. Clardy made a deed to said lands to his wife; the deed reciting that the lands had been paid for out of her separate estate. This transfer was attacked by Wilson as being in fraud of creditors. The court, at the request of Wilson, charged the jury, in substance, that the common law was in force in Tennessee; that any money received by Mrs. Clardy while living with her husband in that state, became, by virtue of said law, the property of her husband; and, if brought to Texas, and invested in the lands in controversy, the same would be his property, and subject to forced sale for the payment of his debts. O. T. Plummer, Esq., testified that he was acquainted with the laws of the state of Tennessee, having read and practiced law in said state, and that the common law prevailed and obtained in said state, except as modified by statute. No other testimony was offered on this issue. It will be presumed that the laws of a foreign state are similar to the laws of Texas, and not that the common law is in force in the foreign state. Tempel v. Dodge, 89 Tex. 71, 32 S. W. 514, 33 S. W. 222. It is necessary for the party seeking to overcome this presumption to prove the foreign law. This may be done by parol evidence. Construction Co. v. Brick (Tex. Civ. App.) 55 S. W. 521. But the fact must be proved with the same certainty that is required in proving all other material facts. Blethen v. Bonner (Tex. Sup.) 53 S. W. 1016. We do not think that proof that the common law is recognized in Tennessee, except as modified by statute, is sufficient to establish the fact that the common-law rule as to marital rights prevails in that state. The testimony may be wholly true, but still the laws of Tennessee regulating the property rights of married women there may be radically different from...