Higgins v. Emily Johnson's Heirs

• Decision Date: 01 January 1857
• Citation: 20 Tex. 389
• Parties: JACOB C. HIGGINS v. EMILY JOHNSON'S HEIRS.
• Court: Texas Supreme Court

20 Tex. 389

JACOB C. HIGGINS

v.EMILY JOHNSON'S HEIRS.

Supreme Court of Texas.

1857.

Where land is purchased with the funds of the community, and the deed is taken in the name of the wife, the presumption is that the land remains community property; but such presumption may be rebutted by proof that the husband declared at the time, that his intention in taking the deed in his wife's name was to make the land her separate property. In such cases the transaction operates as a gift from the husband to the wife. 8 Tex. 239;16 Tex. 314;21 Tex. 231;24 Tex. 305;25 Tex. 103;27 Tex. 457, 507.

That the husband and wife emigrated to Texas in 1840, the husband being at the time considerably in debt; that the husband paid the money for a land certificate in 1845, and took the transfer in his wife's name, upon which a patent issued to the wife, as assignee, in 1846; and that the husband declared at the time of purchasing the certificate that he wanted his wife to have something for the benefit of the family in case he should be pursued by old debts from New York. Held to be sufficient evidence to sustain a verdict in favor of the heirs of the wife, against subsequent creditors.

Expressions in the opinion in the case of Smith v. Strahan, 16 Tex. 323, inconsistent with the ruling in this case, to be treated as dicta, or regarded as modified by the rules and principles expressed in this opinion.

See this case as to the registry laws and notice to third persons, in cases of gift from the husband to the wife, through the form of a conveyance from a third person to the wife.

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

Chauncey Johnson and his wife Emily emigrated to Texas in 1840. In 1846 a patent was issued by the state of Texas to the said Emily, as assignee of Daniel Winchel, for one-third of a league of land situated in what is now Burnett county, and was recorded in the office of the county clerk on the 14th of June, 1851. On the 16th day of August, 1850, the said Chauncey, trading in partnership with his son John S. Johnson, under the firm name of C. Johnson & Son, for value received, executed a note to Jacob C. Higgins for $976.93, payable twenty-four months after date, with interest at the rate of ten per cent. from date. In June, 1852, Emily died, leaving several children, who were defendants to this suit. In December, 1852, Chauncey Johnson and his son John S. Johnson joined in a deed of trust of the land above described, to secure said note to Higgins. On the 5th of April, 1853, said land was sold on an execution against C. Johnson & Son, in favor of Bremond & Van Alstyne, on a judgment recovered on the 29th of September, 1851, in Bastrop county; and was purchased by F. W. Chandler, Esq., attorney of said B. & V., for $26. Chauncey Johnson died in 1854, and John S. Johnson administered on his estate. Higgins' claim was duly presented, and allowed and approved.

On the 24th of August, 1855, Higgins brought this suit in the district court, against John S. Johnson, in his personal and representative capacity, Chauncey Johnson, Henry S. Phillips and his wife Emily, Joseph Glover and his wife Mary, Benjamin H. Glover and his wife Susan, Louis Eillers and his wife Caroline, heirs of said Emily Johnson, deceased, and F. W. Chandler, alleging that said defendants set up a claim to said land, and cast a cloud over the title thereof, thereby hindering the sale of said land for the use and benefit of the plaintiff, etc. On the 30th of August, 1855, Chandler conveyed to the plaintiff, by deed purporting to be in consideration of $150; and plaintiff filed an amended petition, alleging the facts, and substituting in lieu of his original prayer a prayer for a recovery of the land absolutely.

John S. Johnson, in his own right and as administrator of Chauncey Johnson, deceased, and Chauncey Johnson, confessed the plaintiff's allegations, and disclaimed all right, title and interest in the land. The other defendants took defense, claiming the land as heirs of their mother Emily, to whom they alleged said land belonged in her separate right.

At the trial, in addition to proof of the facts already stated, as to which there was no real question, the evidence was as follows: John S. Johnson, introduced by plaintiff, testified that his father, Chauncey Johnson, was considerably in debt when he came to Texas; that his father paid the money for the Daniel Winchel land certificate in 1845, and had it conveyed to Emily, his wife. Being cross-examined upon this point, witness said he thought his father intended to give his mother the land. Witness further stated that he, with all the rest of Chauncey Johnson's heirs, except the wives of Joseph and Benjamin Glover, wanted to make to plaintiff Higgins a deed to the land in controversy, for the purpose of discharging the plaintiff's debt; that at the time of giving the said land certificate to his wife Emily, in 1845, Chauncey Johnson stated that he wanted his wife to have something for the benefit of the family of Emily Johnson in case C. Johnson should be pursued by old debts from New York; that C. Johnson & Son had been a mercantile firm in the town of Bastrop, and began business in 1849.

F. W. Chandler testified that the firm of C. Johnson & Son had proved insolvent, and that he had exhausted all the property of said firm before levying the execution of Bremond & Van Alstyne on the land in controversy. The court charged the jury, in effect, that where property is purchased with the funds of the community, and the title is taken in the name of the wife, the presumption is that such property becomes a part of the community; but that the husband could donate property to the wife; and if such was the intention of Chauncey Johnson in taking the transfer of the certificate in his wife's name, it would amount to a gift to her, and the land become her separate property. Verdict for defendants; disclaimer of John S. and Chauncey Johnson, and judgment for plaintiff for their undivided interest; judgment for the other defendants. Motion for new trial overruled, etc. There was a bill of exceptions, showing that the “defendants offer to prove, by witness J. S. Johnson, that Chauncey Johnson gave the land in controversy to his wife Emily Johnson, to which plaintiff excepts.”

G. W. Jones, for appellant. I. The law presumes that property conveyed to the wife by onerous title, belongs to the community, and throws upon the party contesting the fact the onus probandi of rebutting this presumption by full and satisfactory evidence. For this purpose the appellees can rely upon no other ground than that the certificate upon which the land in controversy was patented, was conveyed to Emily Johnson at the instance of her husband Chauncey Johnson. This ground is clearly untenable. Parker v. Chance, 11 Tex. 513.

II. Conceding the ability of the husband to relinquish his right in the community property to the wife, the question presents itself, By what method can it be done? See act of January 18th, 1840 (Hart. Dig. p. 454), as to conveyances of goods and chattels or slaves, not on consideration deemed valuable in law. The transactions between husband and wife, where there are so many and various inducements to fraudulent transfers of property, cannot be subjected to less scrutiny and rigor than those between other persons.

As the law gives the husband the possession and control of the wife's property, it is legally impossible for the possession, in case of gift by the husband to the wife, to remain with the donee; and hence there can be no other way by which a husband can convey either chattels or lands to his wife than by deed or instrument of writing duly acknowledged or proven and recorded, as prescribed by the foregoing recited act, so that the same may be valid as to creditors or purchasers without notice.

There is no evidence whatever charging Higgins with notice, not even as much as that he even knew anything of the conveyance of the certificate to said Emily. But a knowledge of this fact coupled with the issuance of the patent to Emily Johnson, could not affect the appellant with notice, since such transfer, etc., was no evidence that the husband thereby intended a donation to his wife. Parker v. Chance, 11 Tex. 513. Besides the proof wholly fails to show that the patent was recorded in the proper county, or that the appellant ever knew of its existence prior to the contracting of the debt for which the land was sold.

III. Admitting that the proof sustained the gift, and that it is not obnoxious to any of the foregoing objections, still the land in controversy would be community property. The gift of the certificate was in 1845. Under the law then in force all property, lands and negroes alone excepted, from whom and however acquired, was community property. Hart. Dig. 755. That land certificates are in no sense land, but in every respect treated as personalty, is a doctrine well established. 4 Tex. 289. That the title to the land followed the property of the certificate is a legal proposition too clear for argument.

Oldham & White, also, for appellants, cited 8 Tex. 239, and argued that there was not sufficient proof of a gift to the wife.

Hancock & West, for appellees. The ground on which we seek to sustain this judgment is, that it was a donation from Chauncey Johnson to his wife; and, as such, good against subsequent creditors. That a husband has the right to make a donation to his wife has been...