Huston v. Curl

• Decision Date: 01 January 1852
• Parties: HUSTON v. CURL.
• Court: Texas Supreme Court

8 Tex. 239

HUSTON

v.CURL.

Supreme Court of Texas.

1852.

Where an execution against the husband was levied upon a slave in the joint possession of the husband and wife, and the wife claimed the slave as her separate property, it was held that under the issue as made up no question could be raised as to the property being exempt from the execution on other grounds than that stated in the issue, and therefore that the charge of the court that the presumption, in the absence of proof to the contrary, was that the debt for the payment of which the slave was levied on was a community debt was immaterial, and, whether right or wrong, could not affect the verdict in favor of the creditor.

Property purchased during the marriage, whether the conveyance be made to the husband or wife separately or to them jointly, is presumed to belong to the community. This presumption may be rebutted by clear and satisfactory proof that the purchase was made with the separate funds of either husband or wife, in which case it remains the separate property of the party whose money was employed in the acquisition. (Note 56.)

It seems that in order to rebut the presumption that property purchased during the marriage is common property where a creditor is concerned, it must be shown that the funds with which the purchase was made were owned by the claimant before the marriage, or were acquired by gift, devise, or descent, or that said funds were the proceeds of property thus owned or acquired. (Note 57.)

Appeal from San Augustine.

Henderson and Jones, for appellant.

O. M. Roberts, for appellee.

HEMPHILL, CH. J.

The appellee, Thomas J. Curl, having recovered judgment against Almazon Huston and James Perkins, execution was issued and levied upon a negro woman named Amy, as the property of the said Almazon Huston. The wife of the said Almazon, viz., Elizabeth Huston, the appellant, claimed the said slave as her separate property, and filed the affidavit and bond required by the statute establishing the method of trying the right of property levied on under execution, &c., art. 2814. Her claim to the property is distinctly, in the affidavit and bond, placed on the ground that the said slave is her own property, separate and apart from that of her husband. An issue was, in accordance with the statute, directed to be framed. The plaintiff Curl's averment is not very intelligible or precisely descriptive of the right under which the defendant in execution (the said Almazou) holds and owns the said property. It is alleged, however, that the said slave is subject to the said execution, and that she was levied upon as his (the defendant's) property, and in the joint possession of himself and wife. The claimant, the said Elizabeth, in response, denies that the woman is the property of A. Huston; avers that she is and was at the time of the levy her own property, and as such held separate and apart from her husband. On the trial the jury found the property to belong to the community and subject to the execution. The claimant moved for a new trial, which was overruled, and she appealed.

It appeared in the progress of the trial that the said Almazon and Elizabeth had been known as man and wife for the last fifteen years; that the said slave was purchased in December, 1848, and the bill of sale taken in the name of the said Elizabeth Huston. There was evidence that one of the witnesses had, for several years prior to the purchase of said slave, had money to loan out at interest for the said Elizabeth, and which was claimed by her as her separate funds, amounting at the time of the purchase to the sum of four hundred dollars; that the price of the woman was four hundred and fifty dollars, and that this was partly paid by a post-office draft for $440, purchased by the said Elizabeth, and by...