Epperson v. Jones

Decision Date05 February 1886
Docket NumberCase No. 2070
Citation65 Tex. 425
PartiesT. J. EPPERSON ET AL. v. HATTIE JONES ET AL.
CourtTexas Supreme Court
OPINION TEXT STARTS HERE

APPEAL from Polk. Tried below before the Hon. Edwin Hobby.

This was a suit for both actual and exemplary damages, brought by Hattie Jones, joined by her husband, J. H. Jones, on April 9, 1884, in the district court of Polk county, against T. J. Epperson, sheriff of that county, and Charles Heidenheimer, Jake Stern and D. M. Ehrlich, for the wrongful and malicious levy of an execution in favor of the three last named defendants against the plaintiff, J. H. Jones, and one M. L. Matthews, upon a certain stock of goods, wares and merchandise, alleged to be the separate property of the plaintiff, Hattie Jones.

The petition alleged, in substance, that the plaintiff, Hattie Jones, on April 1, 1884, owned and possessed, in her own name and right, certain goods, wares, merchandise and liquors (itemized in the petition) of the value of $1,600, and also certain revenue licenses of the value of $360; that, on that day, the defendant, Epperson, as the sheriff of Polk county, at the instance and request, and under the direction of his co-defendants, Charles Heidenheimer, Jake Stern and D. M. Ehrlich, they conspiring and confederating together to bankrupt and injure the plaintiff, Hattie Jones, well knowing that she was the owner, in her own right, and in possession of the property, did, wrongfully and maliciously, and with force and arms, break and enter into her store-house, in the town of Moscow, in Polk county, wherein she kept the property, and did, then and there, unlawfully and maliciously seize and levy upon the stock of goods, wares and merchandise and the licenses, under an execution issued out of the county court of Galveston county, on a judgment rendered in that court, March 21, 1883, in favor of the defendants, Heidenheimer, Stern and Ehrlich, as partners under their firm name of Charles Heidenheimer & Co., against the plaintiff, J. H. Jones, and one M. L. Matthews, for the sum of $419.99, interest and costs; and that the defendant, Epperson, at the instance and request of his co-defendants, subsequently sold, at a great sacrifice, the property and goods thus levied upon, and applied the proceeds to the satisfaction of that judgment. The damages, actual and exemplary, were laid at $9,500.

The defendants, in their answer, admitted the seizure of the property under the writ of execution, except the licenses, but denied that the seizure was made with malice or intent to injure. They also denied that the goods, etc., were the separate property of the plaintiff, Hattie Jones, but averred that they were the community property of her and her husband, J. H. Jones, and that they were of much less value than that alleged in the petition. The cause was tried by a jury, and resulted in a verdict and judgment in favor of Hattie Jones, for the sum of $1,500, actual damages. The defendants appealed. The opinion states such facts as are material to the points decided.

T. S. Hill, Crosson & Crosson, McLemore & Campbell, for appellants, that profits arising from the sale of the separate property of the wife, consisting of goods, wares and merchandise, whether controlled and managed by the husband or the wife, or both, or by an agent, are community property and subject to community debts, cited: R. S., arts. 2852, 2854, 3857; Cox v. Miller, 54 Tex. 26, 28;Ezell v. Dodson, 60 Tex. 332;Braden v. Gose, 57 Tex. 41;Wallace v. Finberg, 46 Tex. 35;Green v. Ferguson, 62 Tex., 529;Gilliard v. Chessney, 13 Tex. 337; Ratto v. Holland, 2 W. & W. Cond. Rep., art. 470.

That goods purchased by the wife, on credit, become community property, they cited: Green v. Ferguson, 62 Tex. 529;Heidenheimer Bros. v. McKeen, 63 Tex. 229; R. S., art. 2852.

Hill & Corry, for appellees, cited:

Marx v. Lange, Lewy & Co., 61 Tex. 547; Miller v. Marx & Kempner, 5 Law Rev. (1885), 734; Montgomery v. Brown, 1 W. & W. Cond. Rep., sec. 1303; Schneider v. Fowler, Id., sec. 856; Hirschell v. Blum, 3 Tex. Law Rep. 179.

WILLIE, CHIEF JUSTICE.

The presumption being that all property acquired by either the husband or the wife during marriage, by onerous title, is community estate, the burden of proving that any portion thus acquired is the separate estate of the wife rests upon the party asserting that fact.

Our decisions exact great certainty in making this proof; and, where the property has been paid for in money, it must be made reasonably clear that this money was derived by the wife in such manner as to constitute it her own separate funds. The evidence in this case shows, with sufficient certainty, that $600 of the purchase money of the original stock of goods with which Mrs. Jones first commenced business, was her separate property, having been given her by her father. We are not informed as to whether any more money was paid in cash for the stock, and are left to conjecture that the purchase money left unpaid was $690, as the stock remaining on hand after the business had been carried on for a few months was sold for that sum, and this was paid in satisfaction of the balance due upon the purchase money of the goods. With the proceeds of the sale of this stock the second stock of goods was purchased. It is so stated by Jones, the husband, who had every opportunity of knowing the fact. The witness probably meant the proceeds of sales made previously to the final sale, in bulk, to Goodwin; for the amount realized upon the first sale went to pay the balance due upon the stock. Admitting...

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33 cases
  • Eggemeyer v. Eggemeyer
    • United States
    • Texas Supreme Court
    • 18 Mayo 1977
    ...v. Vaughan, 152 Tex. 491, 260 S.W.2d 676 (1953); DeBlane v. Lynch, 23 Tex. 25 (1859); Smith v. Strahan, 16 Tex. 314 (1856); Epperson v. Jones, 65 Tex. 425 (1886); De Funiak, Principles of Community Property (1971) § 62; Moynihan, Community Property, 2 American Law of Property (1952) § 7.16.......
  • Vallone v. Vallone
    • United States
    • Texas Supreme Court
    • 31 Diciembre 1982
    ...when the business itself was owned by one spouse prior to the marriage and thus was the separate property of that spouse. 4 Epperson v. Jones, 65 Tex. 425 (1886). In Epperson, this Court held that profits from the operation of a business are "community property, and cannot, therefore, be sa......
  • Duncan v. United States, 16310.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 1 Octubre 1957
    ...how much of these proceeds were her separate property, and how much were profits, or community estate of herself and husband," Epperson v. Jones, 65 Tex. 425, 429. "The * * * separate property may undergo changes and yet retain its separate character; but, where * * * separate property has ......
  • Walker-Smith Co. v. Coker, 2389.
    • United States
    • Texas Court of Appeals
    • 3 Diciembre 1943
    ...is conclusively shown to be erroneous by the testimony of both defendants when their entire testimony is considered. In Epperson v. Jones, 65 Tex. 425, 428, the Court said: "We also discard all such general statements as that the goods were bought with the separate property of the wife, and......
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