Gamble v. Dabney

• Citation: 20 Tex. 69
• Parties: WILLIAM T. GAMBLE v. JAMES L. DABNEY AND OTHERS.
• Decision Date: 01 January 1857
• Court: Texas Supreme Court

20 Tex. 69

WILLIAM T. GAMBLE

v.JAMES L. DABNEY AND OTHERS.

Supreme Court of Texas.

1857.

The possession of the wife's separate property by the husband is not such a possession as, after a continuance of three years, without record of the title of the real owner, raises a presumption under the statute (Hart. Dig. art. 1452) in favor of creditors and purchasers, that the absolute property is with the possession. In this case the husband and wife lived together.

Where slaves were conveyed to trustees in trust out of the rents, issues and profits (the deed included land and other personal property) to provide for, support and maintain the grantor's daughter, and her two children, and any children she might afterwards bear unto her present or any future husband, free from any control of her present or any future husband, and from any liability on his account, during the natural life of the grantor's said daughter, and after her death to and for the sole use, benefit and behoof of her children then living, etc., it was held that the interest of the wife was not subject to be taken in execution on a judgment against her, although it might be that the creditor would be entitled to an equitable remedy in such case, to subject the surplus proceeds of the rents, issues and profits, if any, to the satisfaction of his debt. 1 Tex. 350;5 Tex. 363;22 Tex. 565;27 Tex. 37.

A court of equity will not permit a trust to be defeated for want of a trustee to execute it; and if the original trustees refuse, or neglect to act, it will appoint new trustees.

Appeal from Bastrop. Tried below before the Hon. Thomas H. DuVal.

Suit by James L. Dabney, Elizabeth W. Dabney, Susan E. Kimbrough, formerly Susan E. Dabney, now wife of Thomas T. Kimbrough (citizens of Morehouse parish, Louisiana, who joins with her said husband in this action), James H. Dabney, George R. Dabney, Margaret E. Nash, formerly Dabney, and her husband John Nash, Thomas W. Dabney, Lelia A. Dabney, Charles F. Dabney, Laura L. Dabney and Dangerfield L. Dabney, children of the said Elizabeth W. Dabney and her husband, the said James L. Dabney, the last six of whom are minors, all citizens of Bastrop county, state of Texas, against William T. Gamble, of same place, to enjoin the sale of a slave, Ann, levied on by virtue of an execution in favor of the defendant against the said James L. Dabney and Elizabeth E. Dabney. The case was submitted to the court, without a jury, on the following agreed statement of facts:

That in the year 1853, plaintiffs James L. Dabney and his wife Elizabeth W., emigrated from the state of Arkansas to Texas, and in January, 1854, settled in Bastrop county, bringing with them their family of children, the negro girl named Ann upon which the execution in favor of defendant Gamble and against said Dabney and wife was levied, and all the other negroes mentioned in plaintiffs' petition. Dabney and wife brought no other property, subject to forced sale, but the negroes and a few horses, wagon, and traveling chaise, all which, except said negroes, they disposed of soon after arriving at Bastrop. Dabney and wife had and held possession of all of said negroes from the time of their coming to Bastrop till the suing out of this injunction, exercising all acts of ownership and control over them as their own property, and, upon the faith of said negroes, contracted debts with several of the merchants of the town of Bastrop, among them that of defendant Gamble; that Gamble had no notice or knowledge of the existence of the deed of trust set out by plaintiffs in their petition and amended petition, prior to the suing out of an injunction in this case. The deed of trust is admitted to be genuine, and read in evidence by consent, together with the certificate of registration of the same in the states of Mississippi and Arkansas; and it is also admitted that the negroes conveyed by said deed of trust are the same, with their increase, mentioned in plaintiffs' petition; that Dabney and wife had possession of these negroes in Mississippi and Arkansas, and that the trustees named in said deed protected the negroes against James L. Dabney's debts in Mississippi. Neither of the trustees named in the deed of trust followed said negroes to Texas, nor has anyone acting by substitution under said deed, taken or claimed any authority over said negroes since they were brought to Texas. The defendant Gamble recovered a judgment at the spring term, 1855, of the district court of Bastrop county, against said James L. Dabney and his wife Elizabeth, for the sum of one hundred and twelve dollars and _____ cents, and his costs, for goods, wares, and merchandise sold by him to them; and execution, in default of community property of said Dabney and wife, was awarded to Gamble against the separate property of Mrs. Dabney; which execution was levied on the negro girl named Ann. It is admitted that said Dabney and wife are not known, nor were they at the time of the levy of said execution, possessed of any property subject to forced sale, except the said negroes.

The negroes mentioned in the petition were as follows: Giles, a man, about thirty-nine years of age; Mariah, a woman, about thirty-three years of age, and her three children, Ann, a girl, aged twelve years, Jenny, a girl, aged nine years, and an infant boy, Alfred; also a woman named Juda, about thirty-three years of age, and her four children, to wit: Lucy, Amanda, Mary, and an infant girl, Lina.

The deed of trust referred to was as follows:

The state of Mississippi, Noxubee county. This indenture, made this 25th October, in the year of our Lord one thousand eight hundred and thirty-five, between Henry C. Dade, the elder, of the county and state aforesaid, of the one part, and Robert F. Dade and Henry C. Dade, the younger, sons of Henry C. Dade, the elder, of the other part, both of the city of Mobile, and state of Alabama, witnesseth, that the said Henry C. Dade, the elder, for and in consideration of the care, love, and affection, which he hath and beareth unto his lawful daughter, Elizabeth W. Dabney, and her two children, Susan Ellen Dabney and James Henry Dabney, and to make full, sure and sufficient provision of support and maintenance for her the said Elizabeth W. Dabney and her two children, Susan Ellen and James Henry Dabney; and as well also, each and every the other children or child, the lawful issue of her body, which she may bear unto her present and any future husband by her to be taken; and for divers other good causes and considerations, and for and in consideration of the sum of five dollars to the said Henry C. Dade, the elder, in hand paid by the said Robert F. Dade, and Henry C. Dade, the younger, at and before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, hath granted, bargained, sold, aliened, released, conveyed, transferred and confirmed, and by these presents doth grant, bargain, sell, alien, release, convey, transfer and confirm unto the said Robert F. Dade and Henry C. Dade, the younger, full and all his right, title, interest, claim and demand, to a certain tract, parcel or piece of land being, etc. [Here followed a description of a quarter section of land in the state of Mississippi.] And for the considerations aforesaid the said Henry C. Dade, the elder, hath bargained and sold, and doth by these presents, bargain, sell, and in overt market deliver unto the said Robert F. Dade and Henry C. Dade, the younger, all and singular the several negro slaves following, to wit: One negro boy slave named Giles, about nineteen years of age, one negro girl slave named Mariah, one negro girl slave named Inda, each about thirteen years of age, and also the several following articles of personal property, to wit: [Here followed a description of certain personal property, including some household furniture, and words to include the increase of said slaves in the conveyance.]

In trust nevertheless, and to and for the several uses, intents and purposes hereinafter expressed of and concerning the same; that is to say, in trust out of the rents, issues and profits of the said premises, real and personal, herein and hereby conveyed, or intended so to be, or out of the proceeds of the sale of any or parts thereof (the negro slaves above named excepted as herein provided) to provide for, support, and maintain the said Elizabeth W. Dabney and her two said lawful children, Susan Ellen Dabney and James Henry Dabney, as well as also, any, all and every, her future lawful child or children, issue of her body, which she may bear unto her present or any future lawful husband whom she may have, the same as if he, she or they, the said child or children, issue as aforesaid, were now born, in...