Mitchell v. Marr

• Decision Date: 01 January 1862
• Citation: 26 Tex. 329
• Parties: ASA MITCHELL v. W. J. MARR AND OTHERS.
• Court: Texas Supreme Court

26 Tex. 329

ASA MITCHELL

v.W. J. MARR AND OTHERS.

Supreme Court of Texas.

1862.

No doctrine is better settled than that property purchased during a marriage, whether the conveyance be taken in the name of the husband or of the wife, or in the joint names of both, is to be deemed prima facie to belong to the community. [8 Tex. 239;20 Id. 389;28 Id. 457, 507.]

See this case for circumstances held to be insufficient to rebut the legal presumption in favor of the community, so as to establish a claim of separate property in the wife to lands for which a bond for title was executed in her name during the marriage.

Quære, whether the defense of bona fide purchaser for value without notice will avail against title by inheritance, which is by its nature incapable of registration?

APPEAL from Bexar. Tried below before the Hon. Thomas J. Devine.

The appellee, Marr, instituted this suit at the spring term, 1856, against the appellant, Mitchell, for the recovery of an undivided portion of a lot of ground in the city of San Antonio; and against two minor heirs of John S. Simpson, deceased, for a partition of the land sued for, in which they also had an undivided interest.

It was admitted that in 1842, the land in controversy was the property of John W. Smith. On the 13th of June of that year, Smith executed to Eugenia C. Simpson, wife of John S. Simpson, his bond in the penalty of fifteen thousand dollars, conditioned for the conveyance to her of title to various tracts of land, and among them to the town lot in controversy. Smith died intestate in 1845, leaving surviving him his widow and five children. The interests claimed by the plaintiff, Marr, were those of three of the children, who were adults and who conveyed their interests to Marr by deeds made in 1854 and 1855.

In 1851, Eugenia C. Simpson, the widow of John S. Simpson, on the strength of the title bond to her from Smith, procured an order of the probate court against the administratrix of Smith for the conveyance of title to the lot, which title was accordingly made on the 16th of December, 1851. On the 18th of the same month, Eugenia C. Simpson, by her attorney in fact, conveyed the lot to G. P. Post, who subsequently conveyed it to Mitchell, the defendant.

It was proved on the part of the defendant that in 1842, when the title bond was made by Smith to Eugenia C. Simpson, she had never been to Texas; but that in 1837, her husband was making inquiries about property for the purpose, as he said, of investing money belonging to his wife. It was also proved for the defense that Smith and Simpson were very intimate, the latter being the clerk, boarder, assistant and confidential friend of the former. These circumstances were relied on by the defense as rebutting the presumption that the interests conveyed by Smith to Mrs. Simpson were community property, and as evidence to establish that they were intended for her separate right.

At the fall term, 1858, there was verdict and judgment in favor of the plaintiff for the three-fifths undivided interests in one-half of the lot claimed by him, and in favor of the two minor heirs of John S. Simpson...