Owen v. Tankersley

• Decision Date: 01 January 1854
• Citation: 12 Tex. 405
• Parties: JAMES AND CATHERINE OWEN v. TANKERSLEY, ADM'R.
• Court: Texas Supreme Court

12 Tex. 405

JAMES AND CATHERINE OWEN

v.TANKERSLEY, ADM'R.

Supreme Court of Texas.

1854.

I shall consider this case, as if all the parol evidence rejected had been admitted, giving, however, only the legal weight to such evidence, and to conclusions of law, stated in the evidence, such force as they derive from the facts in proof.

It appears to be well established at Common Law, that where slaves or other chattels pass from the possession of a parent into the possession of a daughter, on or after marriage, a gift to the daughter is to be presumed, and it is presumed that the gift is absolute and unqualified, unless there be some express condition or stipulation to the contrary at the time of the gift. Although the parent may have intended only a loan or a conditional gift, yet if this be not expressed at the time, it will not affect the character of the transaction, as a gift.

The delivery (at Common Law, in Georgia,) of the property to the plaintiffs, (by a parent to his daughter and her husband,) presumes a gift to the wife. This, by operation of law, immediately vested in the husband; and as no conditions were attached at the time of the gift, he held in absolute right, which could not, at least without his consent, be modified by the subsequent acts and declarations of the donor, that the gift was for the sole and separate use of the wife. The treatment of the property as his own, by the husband, is incompatible with such consent.

Where it was proved that a parent delivered a slave to his daughter after marriage, (at Common Law,) and by his will several years afterwards, bequeathed the slave to his daughter for her sole and separate use, with a limitation over to a stranger in the event of her death, leaving no child or children, it was held that the property vested in the husband on the delivery, and that the will was inoperative, in the absence of proof of the husband's consent thereto.

A bequest, at Common Law, of property to a legatee, a married woman, subject to her disposal, and hers only, is equivalent to a limitation to the sole and separate use of the wife, not subject to the debts, disposition, or control of the husband.

Where the husband joins the wife in a suit to recover property as the property of the wife, a recovery cannot be had unless the property be proved to belong to the wife, and although it be proved to be the property of the husband. (Note 68.)

Where the husband joined the wife in a suit to recover certain slaves as the property of the wife, and it was proved that the property was delivered by the father of the wife to her after marriage, in a State where the Common Law prevalied as to marital rights; was treated by the husband as his own for several years, when the father died leaving a will in which he bequeathed the property to his daughter, with a limitation over to a stranger in the event of her death without a child or children, and the husband still continued to treat the property as his own, until the commencement of the suit, and the defendant claimed by a transfer under authority of the husband which was prima facie defective, it was held that the property was proved, at most, to be the property of the husband, and that there could be no recovery, although the husband had joined in the prayer that the property be decreed to be the property of the wife.

Quere, as to the effect on the rights of the husband, of a joinder by him in a suit by the wife to recover certain property, which turns out to be the property of the husband, he failing to assert his own right to the property, in that suit?

Appeal from Harrison.

J. A. Jones, for appellee.

HEMPHILL, CH. J.

This is a suit by plaintiff and appellants to recover a negro woman and child alleged to be the property of the said Catherine, with a prayer that it be ordered and adjudged to be her property. Judgment was for defendant, and eighteen grounds have been assigned as reasons for its reversal. It would be a tedious task to recapitulate the facts of the case, or to discuss the numerous grounds on which the judgment has been assailed.

The controversy was finally reduced to the single point, whether the slaves were the property of the husband, James H., or of Catherine, his wife; or, in other words, whether the proof established the fact of property in Catherine, as had been alleged and claimed in the petition.

I shall consider this case as if all the parol evidence rejected had been admitted, giving however only the legal weight to such evidence, and to conclusions of law stated in the evidence such force as they derive from the facts in proof. It appears that the plaintiff, Catherine, is the daughter of one Hugh Rown; that she intermarried with the plaintiff, James H., and they having lived together for some years in Georgia, about the year eighteen hundred and forty, as nearly as can be ascertained from the record, removed to the State of Alabama, where they have ever since resided, and that the negress in controversy was the property and remained in possession of Hugh Rown, the father of Catherine, until about the time of the removal of the plaintiffs to Alabama, when she went into their possession, and so remained for the next eight or nine years.

The question is, what was the effect, under the rules of the Common Law, of this transmission of the property to the possession of the plaintiffs?

And it appears to be well established upon authority, that when slaves or other chattels pass from a parent to a daughter on or after marriage, a gift to the daughter is to be presumed, and that this is absolute and unqualified, unless there be some express condition or stipulation at the time of the gift to the contrary. (4 McCord, 228;1 Nott & McCord, 221-223; 1 Richardson, Eq. Rep., 301.) Although the parent may have intended only a loan or a conditional gift, yet if this be not expressed at the time it will not affect the character of the transaction as a gift. For it makes no difference what the parent intended, the only question is what he did. His acts are the best, as they are the only conclusive evidence of his intentions. There is not a scintilla of evidence of facts or declarations cotemporaneous with the act to show what the parent intended at the time of the gift, or in other words, at the commencement of possession in the plaintiffs, or to prove any stipulations on his part, that the property was for the sole and separate use of the plaintiff Catherine. The only evidence that the gift was conditional is the declaration of the donor in Georgia, made subsequent to the gift, that the property was for the separate use of his daughter; but the only effect of these subsequent declarations would be on the donor himself. They would stop him from reclaiming the property, but they could not change or modify the rights of the husband vested under the gift. Those were modifications to which the husband did not assent. They were made in his absence, and in all probability when he was at his home in Alabama. The case, then, stands thus:

The delivery of the property to the plaintiffs presumes a gift to the wife. This, by operation of law, immediately vested in the husband, and as no conditions were attached at the time of the gift, he held in absolute right, which could not, at least without his consent, be modified by the subsequent declarations or acts of the donor.

The next question is, has the husband assented...