McCutchen v. Purinton

• Citation: 19 S.W. 710
• Court: Supreme Court of Texas
• Decision Date: 13 May 1892
• Parties: McCUTCHEN v. PURINTON <I>et al.</I>

19 S.W. 710

McCUTCHEN v. PURINTON et al.

Supreme Court of Texas.

May 13, 1892.

Appeal from district court, Wichita county; P. M. STINE, Judge.

Action by Arthur B. Purinton and others against W. A. McCutchen. Judgment for plaintiffs. Defendant appeals. Affirmed.

Ashby James and Barrett & Eustis, for appellant. Meade & Bomar and Hunter, Stewart & Dunklin, for appellees.

HENRY, J.

This was an action of trespass to try title brought by appellees, as heirs of Mrs. M. M. Purinton. The agreed statement of facts upon which the cause was tried shows that the land in controversy was acquired by M. M. Purinton on the 2d day of April, 1886, for a valuable consideration, being the sum of $1,120; that said M. M. Purinton died on the 17th day of July, 1887, and that plaintiffs are her heirs; that defendant claims the land by virtue of a judgment obtained against W. W. Purinton on the 11th day of November, 1885, and a valid sale under execution made on the 4th day of January, 1887; that at the date of the said judgment, and also at the date said M. M. Purinton acquired said land, she was the wife of the said W. W. Purinton. No evidence was offered to prove that the $1,120 purchase money for the land was the separate property of M. M. Purinton. The deed to M. M. Purinton recites that the said consideration was paid by her out of her separate property, and that the land was conveyed to her as her separate property. It is contended by appellant that, as the facts show that the land was conveyed upon a valuable consideration to M. M. Purinton while she was the wife of W. W. Purinton, it must be presumed to have been community property, and subject to be sold under execution against the husband, and that to defeat such presumption it was incumbent upon the plaintiffs to prove that the consideration paid was the separate property of the wife. The questions upon which the case turns are: Do the express recitals of the deed overcome this presumption? Can they be treated as evidence of the source of the consideration? The deed, at least, furnishes evidence that was wanting in the cases of Cooke v. Bremond, 27 Tex. 459 Kirk v. Navigation Co., 49 Tex. 215; and the cases that have followed them, — all of which indicate that such recitals should be treated as evidence for one purpose, at least, and their importance. We can see no good reason why a deed containing such recitals should not remove the presumption that would exist in favor of the community in their absence,...