Leeds v. Reed

• Decision Date: 23 May 1896
• Citation: 36 S.W. 347
• Parties: LEEDS v. REED.
• Court: Texas Court of Appeals

36 S.W. 347

LEEDS v. REED.

Court of Civil Appeals of Texas.

May 23, 1896.

Appeal from Dallas county court; T. F. Nash, Judge.

Action by Annie Reed against L. C. Leeds. Judgment for plaintiff, and defendant appeals. Reversed.

M. L. Dye, for appellant. E. O. Harrell and M. M. Parks, for appellee.

LIGHTFOOT, C. J.

The statement of the case by appellant is adopted, as follows: This was an action by Annie Reed, a married woman, who sued, without joining her husband, for community property, consisting of household furniture two sets of wagon harness, $50 on account of a horse trade, and $35 in money, which defendant, L. C. Leeds, she alleges, failed to deposit in bank. She alleged that defendant, Leeds, seized and forcibly dispossessed her of said furniture, and converted said furniture and said harness to his own use, while said furniture and harness were exempt from seizure for debts; that said defendant, by falsely representing to her that he had a mortgage on a certain horse, had bought him for $50 less than the real value; that said defendant had failed to deposit $35 in bank to her credit. The defendant answered, and (1) excepted to plaintiff's petition, because she had not joined her husband in this suit for the community property, nor made him a party thereto. This exception was overruled, and the defendant excepted. Defendant also answered (2) disclaiming any interest in said harness, and by general denial of plaintiff's cause of action. (3) That defendant bought the horse in question from plaintiff for $65, giving her $35 in money, and crediting her husband with the remainder; that after he had bought the horse, and before he had deposited the $35 in bank, he discovered that one Henry Hatcher had a mortgage for $30 on the horse, and that defendant then retained the $30 until plaintiff and Hatcher could settle in regard to the mortgage. (4) That, in regard to the furniture sued for, defendant alleged that it was his own property, but had been embezzled by plaintiff's husband while in the employment of defendant. (5) Defendant, Leeds, further alleged that, prior to the institution of this suit, plaintiff and defendant had a settlement of all matters involved in this suit, whereby, among other things, plaintiff was to return to defendant said furniture, and sell him said horse for $65,—$35 in cash, and the remainder to be credited on her husband's indebtedness to defendant, and, by the terms of said settlement, defendant was to release certain liens held by him on certain other furniture and another horse of plaintiff and her husband; that plaintiff, in compliance with the terms of said settlement, did deliver to defendant the furniture and horse in controversy, and accepted the $35 cash payment on said horse, and accepted the release on said horse and furniture; and that the terms of said settlement were fully complied with and executed by both plaintiff and defendant before the institution of this suit. The result of the suit was a verdict for plaintiff for $75, from which this appeal is taken.

1. The first assignment of error presented complains of the ruling of the court in overruling the demurrer of defendant to plaintiff's petition, on the ground that it shows that plaintiff is a married woman, and is not joined by her husband in the suit. It fully appears that plaintiff had been abandoned by her husband, and left without means. The property in controversy was a part of the community estate, and, under this state of facts, the wife has the right to maintain the suit without being joined by the husband.

2. It appears from the undisputed evidence that the husband of appellee, Annie Reed, was employed by defendant, and absconded, leaving his wife unprovided for, and his business with his employer unsettled; that the latter visited Mrs. Reed, with the view of obtaining some kind of a settlement of her husband's business; and that they entered into an agreement, which appellee claimed was wrongfully obtained from her, without a knowledge of the facts, and she afterwards brought this suit against appellant. Among other things attempted to be settled between the parties was a mortgage debt claimed to be due by Mr. Reed to appellant upon a certain horse. It is alleged by appellee in this case that appellant claimed to hold a mortgage upon a certain horse left by her husband to secure a debt of $50,...