Parker v. Cooperative

• Decision Date: 29 June 1883
• Docket Number: Case No. 4876.
• Citation: 60 Tex. 111
• Parties: F. F. PARKER AND WIFE v. G. Y. COOP.
• Court: Texas Supreme Court

60 Tex. 111

F. F. PARKER AND WIFE

v.G. Y. COOP.

Case No. 4876.

Supreme Court of Texas.

Jun. 29, 1883.

APPEAL from Coryell. Tried below before the Hon. T. L. Nugent.

Suit by G. Y. Coop against F. F. Parker upon two promissory notes. An attachment was issued and levied on one thousand six hundred and forty-five acres of land as the property of defendant. Defendant F. F. Parker filed his answer, in which he averred that at the time of the issuance and levy of the attachment he was a married man, and the head of a family; that he with his family at that time lived and resided upon a part of the one thousand six hundred and forty-five acres, and set up his homestead rights in and to two hundred acres thereof.

He alleged that at the time of the levy he was at his home on the land; that he was never called upon by the officer who levied the attachment, or any other person, to point out any property upon which to levy the same, and that he knew nothing of said levy until long after the same had been made.

He averred that his homestead had never been segregated from the remaining portion of the one thousand six hundred and forty-five acres so attached, and that he had never been called upon by any one to designate the same, and for these two several reasons he prayed the court to vacate and hold for naught the levy and return of said attachment.

Appellant Ann E. Parker, the wife, by leave of the court, filed her plea of intervention, and made herself party defendant. By her plea she also set up homestead rights; that her homestead had never been designated, and also asked for the vacation of the levy of attachment.

She further set up her equitable title and resulting trust in the land levied on, and alleged that the land was bought for her, and that three-fourths of the money with which the same was paid for was her separate money and means; that the said F. F. Parker had already sold five hundred and twenty-one acres of said one thousand six hundred and forty-five acres of land, and had converted the proceeds thereof to his own use; that the five hundred and twenty-one acres so sold was worth as much as all the unsold portion of the one thousand six hundred and forty-five acres.

The deed to the one thousand six hundred and forty-five acres was made during the coverture of appellant F. F. and Ann E. Parker, and recited that the purchase money was paid by her, but did not show that the consideration paid was her separate money.

The case was tried by the court without a jury. The court found that all the allegations in the answer of the appellant F. F. Parker, and the intervenor Ann E. Parker, were true, but refused to vacate the levy of attachment, and also refused to establish the resulting trust of Ann E. Parker, because appellee G. Y. Coop had no notice of the same at the time of the levy.

G. Y. Coop recovered judgment for his debt, with foreclosure of attachment lien on the one thousand six hundred and forty-five acres of land levied on, less two hundred acres, the homestead of appellants, to be designated thereafter as the law directs. From that judgment both the defendant and intervenor below appealed.

C. P. White and J. C. Stone, for appellant.

No briefs on file for appellee.

STAYTON, ASSOCIATE JUSTICE.

The fact that the homestead was not designated before the levy of the attachment furnishes no ground for setting the levy aside. The judgment protects the homestead claim and gives the appellants the right to designate it in the manner that the law permits such designation to be made. This furnishes to the appellants full protection in so far as the homestead is concerned.

The record evidences that the land levied upon was acquired by exchange for two other tracts of land, one of which was the separate property of the wife and the other community property.

The deed to the land attached was made to the wife during coverture, and recites that the purchase money was paid by her; but there is nothing in the deed showing that the purchase money was paid by the separate means of the wife, nor that the land was conveyed to her in her own separate right.

It has been settled by a line of decisions in this state, that, as against a purchaser for value from the husband, or through an execution against him, without notice of the right of the wife, she will not be permitted to hold the land upon proof that the same was bought with her separate means, or was a gift to her from some other person, unless there be that in the deed which will put such purchaser upon inquiry as to her separate right in the property, and this even though the deed to the land be made to her during coverture. Cooke v. Bremond, 27 Tex., 459;French v. Strumberg, 52 Tex., 109.

The same rule has been applied in case of a mortgage of land by the husband, which had been deeded to the wife during coverture by a deed reciting that the purchase money was paid by her, which, however, did not recite that the purchase money was the wife's separate property (Kirk v. Navigation Company, 49 Tex., 215); and this even though the land was bought with the separate means of the wife.

These cases all proceed upon the theory that the purchaser in good faith may rely upon the real title being where, by the deed, it appears to be, and that he or she who wilfully or negligently permits property to stand in the name of another person, at least as apparent owner, cannot be heard to say that such is not true, to the prejudice of a person who, relying upon the apparent ownership, has bought and paid a valuable consideration for the land.

As has been often said, land purchased during coverture, whether the deed be made to the husband or the wife, is presumed to be community property, if there be nothing in the deed to indicate to the contrary.

This is now certainly the law in this state, and it is now too late to inquire whether or not, from the fact that deeds are not ordinarily made to married women, unless there be an intention thereby to convey to her a separate estate, or unless her separate property is the consideration, it would not have been better to have held that, when deeds were so made, it was the duty of a purchaser to make inquiry as to the real ownership.

It cannot be denied that the enforcement of the rule, in many cases, operates harshly upon the interests of married women, where their separate means have been invested in lands, through deeds not containing recitals held sufficient to put purchasers from husband upon notice of the separate rights of the wife; and it may place the wife in a more unfavorable attitude than her dependent relationship to her husband would justify. Be this as it may, such is the established rule.

The question in this case is: Does an attaching creditor of the community, or one who, through operation of law, has acquired an apparent lien upon land which has been purchased in whole or in part with the separate means of the wife, occupy such position as precludes the wife from proving...