Edrington v. Wife

• Decision Date: 31 December 1849
• Citation: 5 Tex. 363
• Parties: EDRINGTON v. MAYFIELD AND WIFE.
• Court: Texas Supreme Court

5 Tex. 363

EDRINGTON

v.MAYFIELD AND WIFE.

Supreme Court of Texas.

December Term, 1849.

Where the domicile of the husband and wife was in Texas, and during their temporary sojourn in the State of Tennessee the uncle of the wife made her a parol gift of a slave by delivery--it was in proof that the common law prevailed in Tennessee-- Held, That the gift took effect and vested title to the property in the wife as the donee according to the laws of Texas regulating marital rights.

Quere whether the authority of the Legislature to pass laws more clearly defining the rights of the wife to her separate property and to the community property is the same in respect to property acquired before the adoption of the Constitution as it is in respect of property acquired afterwards.

The principles and rules of the common law as to the effect of coverture, so far as they affect the capacity of the wife to hold property in her separate right, are totally expunged from our code of jurisprudence, and in an investigation of the rights of the wife must be altogether discarded from consideration.

The capacity of the wife to hold property in her own right, separate and apart from her husband, is as complete and perfect as that of the husband to hold property in his own right separate and apart from his wife. There is not the slightest difference in this particular between their civil rights and capacities.

The wife loses many of her civil rights by marriage. The law has deemed it sound policy and beneficial to her interests that certain onerous restrictions should be imposed upon her ability to deal with her separate estate. And if it be shielded from her voluntary dispositions a fortiori, it would be protected against the debts, engagements, or contracts of her husband, unless made for the benefit of such estate or under certain circumstances for the support of the wife and her family.

That portion of the nineteenth section of the seventh article of the Constitution, which provides that “laws shall be passed more clearly defining the rights of the wife in relation as well to her separate property as to that held in common with her husband” cannot in any degree have been intended to abridge the rights of the wife in her separate estate.

The act of April 29, 1846, to provide for the registration of the separate property of married women, merely extends a privilege. No penalty is declared in case of failure or neglect of the wife to avail herself of it, nor does the Legislature possess any constitutional power to declare that the title of the wife to her property shall be divested for the want of registration, nor that for that reason it shall be subjected to the debts of her husband or of any other person whomsoever.

There is no presumption that property in the possession of a conjugal partnership belongs to the husband rather than to the wife. Where the matrimonial union has continued for any considerable period, the presumption is strong that the property belongs to the common stock of acquests and gains.

Quere how far the fraudulent conduct of a wife might involve her property in liability.

Where the gift of a slave is made by delivery merely, a third person not a creditor of or purchaser from the donor cannot take advantage of the insufficiency of the title of the donee under the statutes regulating fraudulent conveyances.

Error from Fayette. This was a trial of the right of property under the statute, and the question for determination is whether the slave levied on is the property of the husband or of the community, or a portion of the separate estate of the wife, and as such not liable for the debts of the husband.

The facts of the case were that the husband purchased the slave, a woman, in 1842; that she went with his family to Tennessee upon a visit; that she was levied upon in that State and sold as the property of the husband, and bought by the uncle of the wife, and by him given to her by delivery in 1844; that the wife, in company with the husband, returned to Texas in 1845, the slave with them, and remaining from 1845 up to the time of the levy. The wife had no schedule of her separate property recorded in the county where she lived.

On the trial the plaintiff asked the court to charge the jury as follows: “If the jury are satisfied from the proof that the debt claimed by the plaintiff in execution was contracted prior to the 29th April, 1846, and if the claimant has failed to prove to the satisfaction of the jury that she had recorded her evidence of title to the negro in controversy as required by the statute that was in force prior to the said 29th April, 1846, they must find for the plaintiff in execution;” which was refused. The court charged the jury “that at the time of the gift the claimant's domicile was in Texas, and that the gift took effect and vested property in the donee according to the laws of Texas, and not according to the laws of Tennessee.” The court further charged the jury, “that the act of the Legislature of 1846, for the registration of the separate property of married women, is permissive only so far as the wife is concerned, and that a failure on her part to register her separate property under that act does not divest or change the character of her title thereto, but only imposes on her the necessity of proving her title by other evidence.” An exception was taken to the charge, and the giving of this charge and the refusal of the charge asked were assigned as grounds of error.

Hancock and Chandler, for pla...