Fitts v. Fitts

• Decision Date: 01 January 1855
• Citation: 14 Tex. 443
• Parties: NANCY FITTS v. OLIVER H. FITTS.
• Court: Texas Supreme Court

14 Tex. 443

NANCY FITTS

v.OLIVER H. FITTS.

Supreme Court of Texas.

1855.

Quere whether a marriage settlement which is not executed or acknowledged before a notary, but is attested by two witnesses, is valid. (See Hart. Dig., art. 2412.) (Note 66.)

The trust deed, then, having binding force, there can be no objection to the substitution of a trustee for (instead of) Moore, who had departed this life; but why he should have been also denominated or appointed as a receiver is not so obvious. But if he be not required to discharge any duties, or be not invested with any powers which might not have been imposed or conferred upon him in his capacity as trustee, there is no sufficient reason why the appointment should be revoked, especially when, as a condition precedent to the assumption of the office, he is required to give bond with sufficient sureties, and is also strictly and constantly under the supervision and control of the court. Whether he be called receiver or trustee is not very material.

See this case as to the necessity of a statement of facts where there is a special verdict, and the appellant objects not to the verdict, but to the decree rendered thereon.

There are cases in which, on divorce, the court will take the property out of the possession of both husband and wife and place it in the hands of a trustee, to be administered by him, the proceeds to be applied, in proportions ordered by the court, to the support of the husband, the wife, and their children. (Note 67.)

The Constitution of the State and the law of 1848 on the subject of marital rights produced no change in the rule of division on divorce, and the statute continues as it existed before the adoption of the Constitution.

The most obvious construction of the statute (Hart. Dig., art. 849) is that (on divorce) the separate property should be restored to its owner respectively, and that such division of the community property be made as may seem just and right; it being understood that a due regard must be had to the rights of the parties, that suitable provision must be made for the education and maintenance of the children, if any, and that although the community property, if any, is the primary fund from which such provision should be made as would render the division just under all the circumstances, yet there may be cases in which the separate property will be subjected to such charges, and especially in favor of the wife, as may be equitable and right; provided that the title to lands and slaves be not divested.

In this case, on a question as to marital rights in cases of divorce, the court followed the adjudications of courts where the common law prevailed rendered upon statutes similar to our statute on divorce.

It seems that a decree for divorce which takes separate property out of the possession of the owner and places it in the hands of a trustee, to be controlled and managed by him, the proceeds to be paid to the husband, wife, and children in certain proportions, is not inconsistent with the statute, (Hart. Dig., art. 850,) which provides that neither party shall be compelled to divest himself or herself of the title to real estate or slaves.

Where there was no common property, and the only property which appeared had been the separate property of the husband, and had been conveyed by him for the benefit of his wife and children, and the wife obtained a divorce on the ground of cruel treatment, and the wife had alleged in her petition that the husband was dissolute and dissipated, and incapable of taking care of property, a decree was made placing all the property in the hands of a trustee or receiver, who was required to give bond and to manage the property, subject to the orders of the court, and pay out the proceeds in equal proportions for the support of the husband, wife, and children. (Note 68.)

Since the repeal of the Mexican laws in 1840 the husband can make donations of property to the wife, and such donations may be made directly, without the intervention of a trustee. (Note 69.)

Error from Rusk. The verdict of the jury commenced “We, the jury, find the allegations of plaintiff's petition relative to the divorce prayed for to be true,” and then continued as stated in the opinion.

Henderson & Jones, for plaintiff in error. It may be that the court was right in decreeing a part of the use and profits of the negroes in dispute, the separate property of the plaintiff, for the support of the husband, and that this is no violation of the law which says that on a decree of divorce neither husband nor wife shall be compelled to divest him or herself of title to their separate property; yet it is not so clear that the court was right in taking the possession of the plaintiff's separate property away from her and appointing a trustee for her against her will and consent. This exercise of the power of appointing a trustee is certainly a step beyond any former precedent. Nevertheless the plaintiff in error is willing to waive this and all other exceptions to the decree and to abide by it so far as it extends; but there is a matter in which the decree falls short, and as to this we ask that the decree may be reformed, and be made to carry out full relief and justice. The jury find, among other things, that the defendant had conveyed to the plaintiff two tracts of land and some stock, and the court recites such finding in the decree; nevertheless the court omits to decree these lands to the plaintiff. As to these lands, we ask that the decree of the court may be corrected and that they be decreed to the plaintiff; and as the defendant has been provided for out of the profits of the slaves sufficiently in the judgment of the court below, and as the conveyance was to the plaintiff solely and absolutely, we ask that the property be decreed to the plaintiff free from any further charge.

Armstrong and Parsons, for defendant in error.

HEMPHILL, Ch. J.

This was a suit by the wife, Nancy Fitts, for divorce, on the ground of cruelty. There having been no appeal by the defendant from the judgment for divorce, the decree will not in this particular be reversed, the errors, if any, being such as are not apparent on the record. But the plaintiff insisting that she has been aggrieved by the disposition that has been made of the property, we will examine her grounds of complaint.

She alleged in her petition that she was entitled to two tracts of land, certain negroes named, some cattle, and a yoke of oxen, which, by deed of gift from her husband, had been conveyed to her subsequent to their marriage, and a copy of the deed was filed as an exhibit. This was drawn very unskillfully. It states the consideration to be the natural love and affection which the husband bore to his beloved wife and children already begotten by his wife and to be begotten by them, and the further consideration of one dollar; and it gives the property to his wife and her lawful heirs by him, and after her death the property to go to the lawful heirs, &c.

By various amendments it was averred that the defendant, previous to their intermarriage, had by deed conveyed these slaves to John Moore, the father of the wife, for her use and benefit and that of the heirs of her body begotten by this marriage; that the said deed was, after its execution and delivery, deposited in the office of the county clerk to be recorded, and that the defendant after the marriage unlawfully and fraudulently, without consent of the plaintiff or of John Moore, the trustee, took the said deed of trust from the said office and destroyed or suppressed the same; that the defendant is dissolute and dissipated, incapable of managing or taking care of property, and the plaintiff feared that if he should obtain control of said slaves they would be disposed of and their proceeds squandered so as to be lost to plaintiff and her children; that he has already sold and squandered the proceeds of the sale of five of the slaves which had been included in the marriage settlement. She prayed for the appointment of a trustee to carry out the trust of said deed and for such relief as the nature of her case might require.

The jury found that there was a deed of trust given by defendant to John Moore for the benefit of plaintiff and her children before the intermarriage of plaintiff and defendant, and they found the negroes claimed in the petition subject to said deed of trust; and they also found that a conveyance was afterwards made by defendant to plaintiff which included the slaves, oxen, cattle, and two tracts of land, and that these originally belonged to the defendant. They also found that the deed of trust was attested by two witnesses, but was not acknowledged before a notary public, but was filed in the county clerk's office and taken out by defendant.

The court, after reciting the substance of the trust deed and setting forth fully the deed made after the marriage, appointed Samuel P. Darwell trustee in place of the deceased John Moore, investing him with the powers pertaining to the said Moore, and that the title to the said slaves be not divested, but that the net proceeds of their use be decreed as follows, viz, one-fifth to the husband during his natural life, one-fifth to the plaintiff during the life of the defendant, and three-fifths to their children; and it was further decreed that the said Samuel P. Darwell be appointed special agent or receiver, distinct from his office as trustee; that as such he give bond to the parties in double the value of the slaves; and after stating the conditions of said bond, the mode of execution and approval, &c., it is further decreed that the said receiver take charge of the property and manage it for the best interest of the parties concerned; that on the death of Oliver Fitts, the defendant, the office of receiver shall cease and the property revert to and be controlled by the trust deed; that such receiver be under the supervision of the...