Parker v. Wife

• Decision Date: 01 January 1854
• Parties: PARKER, EX'RIX, v. CHANCE AND WIFE, ADM'RS. (Note 73.)
• Court: Texas Supreme Court

11 Tex. 513

PARKER, EX'RIX,

v.CHANCE AND WIFE, ADM'RS. (Note 73.)

Supreme Court of Texas.

1854.

According to the Mexican law, the community included not only property purchased with the funds of the community, but also purchases by the husband singly, or by the wife, with the express or tacit consent of the husband, whether the purchase money was the common property of both or the separate property of either, except where with the proceeds of the sale of an article of property belonging to one of the partners another article is purchased, or where an article belonging to one of the partners is exchanged for another.

Headright certificates, issuing under the Constitution of the Republic and the law of 1837, to heads of families, formed a part of the community property.

The presumption of law is that property conveyed to the wife (by onerous title), belongs to the community; and the direction of a husband to make out the deed in the name of the wife, will not, of itself, rebut this legal presumption.

Where the husband intends to relinquish his right in the community property, and to transfer it to his wife, his act must be explicit and such as to leave no doubt of his intentions; a mere transfer of the property to a stranger, with directions to reconvey to the wife, will not accomplish the object, and show that a donation was intended; and especially where the stranger is bound, under penalty, to make the title.

It is not necessary, in this case, to express any opinion as to the validity of donations of community property, nor as to the extent to which they may be made, from one partner in matrimony to another.

Appeal from Walker. The appellant (who was plaintiff in the Court below), alleges that she is a creditor of the estate of Edward Farris, dec'd, in the sum of two hundred and eighty dollars and interest, allowed by the administrator and approved by the Chief Justice. She further states that on the 5th February, 1838, during the coverture of the said Farris and his wife Lucy, there was issued to the said Farris a certificate for a league and labor of land, and that in the said month and year the said Farris, in consideration that Francis Slauter would locate and clear out said league of land, and then convey to Lucy Farris one-half thereof, did, for value received, convey to said Slauter said headright certificate, and the said Slauter, in pursuance of said agreement, executed his bond for title to one-half of the said land; that on the 16th February, 1846, there was issued to said Slauter, as assignee of the said Farris, a patent for said league. The petitioner further averred that Slauter having departed this life, his executor, G. W. Hill, in pursuance of said title bond, given by his testator, did, on the 2d September, 1848, convey to the said Lucy Farris the northeast half of the said league of land, by deed duly recorded, and that on the 31st of January, 1848, the said Farris, by deed, conveyed to B. F. Wright, from the west side of his headright league, one thousand acres, the beginning corners of which and the plan of survey for quantity are specified. The petitioner further alleges, that said Farris died, leaving the balance of said league, viz.: twelve hundred and fourteen acres, unsold and as assets for the payment of his debts; that the said Lucy Farris has lately intermarried with Isaac S. Chance, and has fraudulently withheld the same from the inventory of the estate, expecting to appropriate the same to her own use; that the Court, by reference to an exhibit of the assets, could see that the estate would scarcely pay twelve cents on the dollar, but with this land included, the estate would be perfectly solvent. The petition prayed that the said Lucy should show cause why a better inventory including said land should not be filed, etc. The defendants demurred to the petition, and for special cause of exception stated that the plaintiff's petition and the facts therein contained sustain the correctness of the inventory as rendered, and that to have returned the land as a part of the estate would have been to inventory her own property. As the cause was disposed of on demurrer, the other pleadings need not be noticed. The County Court overruled the demurrer, decreeing that the land was, at the death of Edward Farris, community property, and ordered the same to be placed on the inventory of his estate. From this decree there was an appeal to the District Court; and in that Court the demurrer to the petition was sustained and the petition dismissed.

The cause has been brought up to this Court by appeal, and four grounds of error have been assigned, the whole of them, so far as they are specified, being, in substance, that the decree sustaining the demurrer and dismissing the petition is erroneous.

Yoakum & Branch, for appellant. Slauter's bond to Lucy Farris was for a valuable consideration, and the land went to the community. (Davidson v. Stewart, 10 La. R., 148; 2 Kent, part 4, Sec. 28, p. 186, Inst. of Just., 2, 7, 3.) The headright was community, as this Court has often decided. (Yates v. Houston, 3 Tex. R., 433.) Can the husband give it to his wife? We think the Civil Law says not. (Section 99 Schmidt's Civil Law, Art. 40, p. 11; Art. 985, p. 209; Art. 995, p. 210; Art. 1194 to 1210 inclusive, page 225 et seq.; donations inter vivos and donations between married persons.) It was to prevent just such frauds in anticipation, that these provisions were made, in regard to donations.

W. A. Leigh, for appellees. The question presented by the pleadings in this cause, is, Can a husband make a donation to his wife post nuptias, under the Civil Law? He can. (See Justinian, Inst., 2, 7, 3, and Kent's Com., Vol. 2, p. 187.) This gift was made, as appears from the petition, in the year 1838; and hence the Civil Law is applicable. This gift was made at a time when Edward Farris had no creditors. There is no fraud alleged by the petitioner, except that she fraudulently withheld the land from inventory. If it were hers there could be no fraud in that omission. No one could suppose that E. Farris owned this land, because he had parted with it. He reserved no interest in it, and hence any credit which he may have afterwards obtained, could not have been had upon the expectation of receiving payment out of the proceeds of this land. There is no fraud in the transaction.

HEMPHILL, CH. J.

The ground upon which the...