Moss v. Gibbs

• Decision Date: 31 July 1963
• Docket Number: No. A-9497,A-9497
• Citation: 370 S.W.2d 452
• Parties: James W. MOSS, Petitioner, v. Emily GIBBS, joined pro forma by her husband, Chris Gibbs, Respondents.
• Court: Texas Supreme Court

Page 452

370 S.W.2d 452

James W. MOSS, Petitioner, v. Emily GIBBS, joined pro forma by her husband, Chris Gibbs Respondents.

No. A-9497.

Supreme Court of Texas.

July 31, 1963.

Rehearing Denied Oct. 2, 1963.

Neal & Hazelwood, Amarillo, for petitioner.

Monning, Monning & Umphries, Amarillo, for respondents.

NORVELL, Justice.

Essentially, this is a 'special community property' case. The petitioner, James W. Moss, sought to levy upon three town lots in Amarillo, Texas, under a writ of execution to satisfy a judgment against Chris Gibbs, the husband of respondent, Emily Gibbs. The trial court entered a perpetual injunction restraining petitioner and the sheriff of Potter County from selling the lots in question. The injunction was based upon a jury finding that said lots 'were paid for (by Emily Gibbs) out of her separate funds and rents from her separate property.' The Court of Civil Appeals affirmed, 364 S.W.2d 268. The appellant court seems to have based its decision primarily upon the holding that the lots in question belonged to the special community and were exempt from the payment of the husband's debts.

The controlling question ultimately reached is whether we should follow or overrule Strickland v. Wester, 131 Tex. 23, 112 S.W.2d 1047 decided by this Court in 1937. We have decided to adhere to the rule of the Strickland case for the reasons hereinafter discussed. Accordingly, the judgments of the trial court and the Court of Civil Appeals are reversed and judgment here rendered vacating the injunction.

Despite some contention to the contrary, the undisputed evidence shows that the three lots in controversy are the community property of Emily and Chris Gibbs and not the separate property of Emily Gibbs. The following statement is based upon the testimony of Mr. and Mrs. Gibbs:

Before her marriage, Emily Gibbs worked for a Mr. Harding. She received her board and Mr. Harding 'gave her a calf or two' and Mr. Dysart gave her a horse. She sold these animals and kept the money. According to Chris Gibbs, 'she didn't have enough to put in a bank account, so she just kept it until she finally sold and traded around until she had enough to start her own bank account.'

Mr. and Mrs. Gibbs were married in 1912 and thereafter her uncle gave her cattle from time to time which she sold and purchased more cattle with the proceeds. She received some thirty head of cattle from her uncle,-five or six at a time,-over a period of time extending from 1919 into the 1940's. Mrs. Gibbs' cattle buying and selling operations stemmed from the cattle and a few horses given to her by her uncle and Mr. Harding and Mr. Dysart.

Mrs. Gibbs testified that when the cattle were poor she fed them and when they got fat she sold them; that the proceeds of these sales were put in the bank account which she maintained and when she wanted to purchase cattle she wrote a check on this bank account to pay for them. She stated that she made a profit by buying and selling cattle.

In 1937, Mrs. Gibbs purchased a rent house and paid for it out of the bank account mentioned. This property is not directly involved here and we may assume that it was separate property as recited in the deed which she received.

The money in Mrs. Gibbs' bank account came from three sources, namely, (1) her cattle operations, (2) rents from separate property owned by her and (3) re-payments of loans made to her husband in order to meet household expenses. Mr. Gibbs did not draw checks against this account.

In 1942, Mrs. Gibbs purchased the three lots here involved and paid for them with a check drawn on her bank account. She had destroyed her cancelled checks and deposit slips, but the bank's ledger sheet of her account showed deposits of $621.90, $1,100.00, $550.67, $507.67, $55.00, $507.67, $73.00, $1,142.66, $316.00, $200.00 and $919.74 for a period of time extending from August 4, 1941 to June 10, 1942.

In explaining the $1,100.00 item mentioned above, Mrs. Gibbs said:

'Well, we sold some cattle, I guess, and deposited it. I was buying and selling, and I would put it back again, and I was making money at that time.'

Similar explanations were made of other items. One witness testified that he had bought cattle from Mrs. Gibbs and also sold cattle to her. Chris Gibbs testified that his wife would pay him pasture rent for her cattle when she was fattening them for market.

No attempt at tracing the original separate investment into specific property was made other than that indicated by the keeping of the bank account by Mrs. Gibbs and her general testimony as to what went into the account and what was paid out therefrom.

We think the evidence shows without dispute that Mrs. Gibbs was in the business of buying, feeding and selling cattle. The greater part of her bank account in 1942 was accounted for by her cattle operations. She was buying and selling at a profit and the revenues of her business were community property. No portion of the bank account as it existed in 1942 could be traced and identified as Mrs. Gibbs' separate property. It had been thoroughly commingled with the community. William O. Huie, Commentary, Texas Community Property Law, 13, Vernon's Ann.Tex.Stats. 1, 1. c. 32 § 10, Problems Involved in Separating Income from Principal. See also, 28 Tex.Law Review 576; 29 Tex.Law Review 339.

Mr. Gibbs, so far as the testimony shows, made no attempt to interfere with his wife's management of her cattle business, nor her control over her rent house operations. He drew no checks upon his wife's bank account, nor did he deposit any money therein, except perhaps in payment of loans made to him by his wife. Upon occasion he provided pasturage for cattle and received payment therefor from his wife. At his wife's direction, he sometimes delivered cattle which she had sold. This testimony shows no more than a noninterference with his wife's business activities. It does not establish a gift of his community interest in the profits realized from such operations. If mere noninterference would establish a gift, then all special community revenues and earnings could be transmuted into separate property by a mere assertion or claim made by the husband and wife at any time convenient or advantageous to them, even though the rights of creditors might be affected. From the standpoint of a creditor, the distinction between special community and separate property becomes important when money, or the property originally received from the wife's earnings and profits is converted into a different form or species of property through exchange or mutation.

The three lots upon which the execution levy was made were purchased by Mrs. Gibbs in 1942 and paid for with a check drawn upon her bank account. The deed to the lots contained no recitation that the property was conveyed to her as a part of her separate estate.

The debt upon which the judgment supporting the writ of execution is based was contracted by Mr. Gibbs in 1960, some eighteen years after the acquisition of the three town lots in question here. As above stated, the Court of Civil Appeals was of the opinion that these lots were a part of the special community and were not subject to the payment of debts contracted by the husband without the consent of the wife.

The term 'special community' had its origin in legislative attempts to enlarge upon the constitutional definition of separate property. In Arnold v. Leonard, 114 Tex. 535, 273 S.W. 799, it was held that:

'It is a rule of construction of Constitutions that ordinarily, when the circumstances are specified under which any right is to be acquired, there is an implied prohibition against the legislative power to either add to or withdraw from the circumstances specified. Koy v. Schneider, 110 Tex. 378, 218 S.W. 479, 221 S.W. 880; Dickson v. Strickland (Tex.Sup.) 265 S.W. 1015; Ex parte Vallandigham, 1 Wall. 252, 17 L.Ed. 589; Cooley's Constitutional Limitations, p. 99; 6 R.C.L. § 43. Hence, when the Constitution says that as to property, not owned or claimed by the wife at marriage, it becomes her separate property when acquired in one of three specified modes, the Legislature is prohibited from saying that property acquired after marriage in some other mode may also become the wife's separate property.'

The rents and revenues from the wife's separate property and her personal earnings are not within the constitutional definition of separate property, Article 16, § 15, Texas Constitution, Vernon's Ann.St., in that they are not acquired by gift, devise or descent.

The Court, however, also stated that:

'The sum of our conclusions is: The Legislature, in defining the wife's rights in and to her separate property and property held in common with her husband, could lawfully deprive the husband of the power granted him for many years to manage and control the wife's separate property and portions of the community property which were derived from use of the wife's separate property or from her personal exertions, and could confide the management, control, and disposition thereof to the wife alone, and could exempt, not only her separate property, but said portions of the community from payment of the husband's debts. In making this grant of enlarged rights to the wife, and working the corresponding diminution in rights to be exercised by the husband, the Legislature was lawfully defining the wife's rights in both her separate estate and common property, as expressly authorized by the Constitution. But the Legislature could not divest the husband of all interest in and to property which, under the Constitution, was guaranteed either to the community or to the husband's separate estate, and use the same to enlarge the wife's separate estate beyond its constitutional limits.'

Special community property therefore is that portion of the community which is under the wife's exclusive control and is not liable for the husband's debts.

The lots in question are...