Rice v. Rice

• Decision Date: 01 January 1858
• Citation: 21 Tex. 58
• Parties: EDWARD RICE v. CAROLINE E. RICE.
• Court: Texas Supreme Court

21 Tex. 58

EDWARD RICE

v.CAROLINE E. RICE.

Supreme Court of Texas.

1858.

Improvements made after marriage, on land which is the separate property of the husband or wife, are to be accounted for as community property, unless it be proved that they were made with the separate means of one of the partners.

It is no objection to an issue submitted by the court to the jury, that it is a mixed issue of law and fact; such are the issues in all cases of a general verdict.

It would seem that buildings erected by the joint labors or funds, upon the separate property of one of the spouses, being fixtures, attached to the soil, and in the nature of things, not divisible in specie, where one of the joint owners has no interest in the land, it follows that such buildings rest in the owner of the land, and that the community estate must be reimbursed for their cost.

See this case as to the submission of issues made up by the court; and to the point that where an essential issue was omitted, it might be submitted to another jury, without disturbing the verdict on those submitted.

See this case for a decree which was construed to take the custody of children from their parents and give it to their grandfather; which it was held the court could lawfully do.

Where a divorce is granted, the court has authority not merely to partition the separate from the community property, and to divide the latter; but in cases where the circumstances require it, to place the whole of the property, both separate and community, in the hands of a trustee, to be under the supervision of the court, for the support and education of minor children; provided that the title of either party, to real estate or slaves, shall not be divested. 14 Tex. 443.

See this case as to the question of homestead, in connection with divorce, and the power of the court to make disposition of the property of the parties.

Appeal from Liberty. Tried below before the Hon. James M. Maxcy.

Suit by appellant against appellee for divorce, commenced September 8th, 1856. The petition after alleging the marriage of plaintiff and defendant in 1850, alleged that defendant had treated plaintiff “in a most cruel and outrageous manner,” to wit: about the month of June, 1856, your petitioner was in his bed and very feeble from the effects of a severe spell of sickness, when the said Caroline E., his wife, came into his room with a stick and a knife, and beat and bruised him in a cruel and outrageous manner, and threatened to take his life with the knife; that shortly afterwards while he was still very feeble and much debilitated, she came into his room with a stick, locked the door after her, and commenced beating your petitioner with the stick in such a cruel and outrageous manner that he believes she would have killed him had it not have been for the timely interposition of one of his neighbors, for whom he had dispatched a little negro; that sometime about June of the present year, she took a hatchet and ran after your petitioner through the house and yard, threatening to split his skull open with it; that since that time, about August, she followed your petitioner with a stick and before he was aware of her intention, she beat and bruised him in a cruel and outrageous manner; together with a great many other cruelties, outrages and excesses, since and before those specified above, she has been guilty of towards your petitioner, so as to render their living together as husband and wife, insupportable and unbearable; that he has tried every means in his power to check her cruel and outrageous impetuosities, so that they might live agreeably together; but that he finds it an impossibility; that there are two children, the result of said marriage, Mary Jane, aged about five years, and Robert, about three years, and that the said Caroline E. Rice, from her reckless and imprudent habits, is incapable of raising said children in a respectable and decent manner, etc.

Answer by defendant, denying all allegations not afterwards admitted, and proceeding as follows: This respondent admits that there are two children, the result of her marriage with said plaintiff to wit: Mary Jane aged about five years, and Robert aged about three years. This respondent says, that from the tender age of said children they require that attention and care which a mother only could give them She avers that said plaintiff is wholly incapable of bestowing such care and attention upon said children, as their years require; and especially so, in consequence of the dissipated character and habitual intoxication of which the said plaintiff is and for a long time has been guilty. This defendant further says, that said plaintiff has driven her from her home, and refused her the protection and support which as a faithful husband he should have extended to her; that in consequence of his conduct, cruelty and outrages, she has been compelled to seek a home and refuge at the house of her father, William J. Mills, and petitioner says that in consequence of said outrages and excesses, their living together is insupportable; and she prays by way of cross petition, that she and the said plaintiff may be divorced from the bonds of matrimony; that the custody and guardianship of her said children may be decreed to her, or in the case the court should deem it expedient and proper to give the custody and guardianship of said children to any other person than herself, that the same shall be given to her said father, in whose house they with respondant are now living. That said William J. Mills is a prudent, discreet and moral man and in every way qualified to discharge in a faithful and fatherly manner said trust.

Petitioner avers that the following property is held in common between herself and said defendant, to wit: Inner lots Nos. 1, 2 and 3 in block No. 29, in the town of Liberty, Liberty county, upon which their homestead and domicile is situated; and inner lot No. 4 in block No. 18, in said town of Liberty; that said last mentioned lot is of small value; that she is without means for the support of herself and children. She prays the court, in case a decree of divorce should be granted, to set aside said homestead and domicile for the use of herself and children.

Reply by plaintiff, alleging that lots 1, 2 and 3, mentioned in defendant's answer, were the separate property of the plaintiff, owned by him before the marriage; and that the east half of lot No. 4, with the improvements thereon, was the only community property of the parties; and plaintiff prayed a partition of it.

Amendment of answer, alleging that all the improvements on lots 1, 2 and 3, were put thereon since the marriage; and that said lots and improvements were common property.

At the fall term, 1856, the whole case was submitted to a jury, who returned a verdict to the effect that the allegations in the petition were sustained fully, and that lots 1, 2 and 3 in block 29, were the separate property of the plaintiff. Whereupon the court rendered judgment dissolving the bonds of matrimony between the parties; awarding the custody and education of the children to the defendant; “and the defendant having filed a motion to set aside so much of the verdict as related to the property mentioned therein, the same, after argument of counsel thereon, is set aside, and a new trial awarded upon the issues in relation to the property mentioned in the pleadings.” The entry also appointed appraisers to return an inventory.

Inventory returned, lots 1, 2 and 3 in block 29 in town of Liberty and improvements $1,350; one-half of lot 4 in block 18, with improvements, in possession of E. Rice on the--day of _______, 1856, but since sold under execution as the property of E. Rice, $205.00; articles of household furniture valued at $127.50.

Amendment of answer admitting that lots 1, 2 and 3 were the separate property of the plaintiff, but alleging that the improvements thereon, consisting of a dwelling house and other improvements, were made after the marriage; that the dwelling house was worth $1,200, and the other improvements worth $200; that said property had always been occupied as the homestead of the plaintiff and defendant since the marriage; that the plaintiff owned no other property except the property mentioned in the inventory; that so much thereof as belonged to the community was insufficient to support the children which had been assigned to defendant; that the lots 1, 2 and 3 with the improvements thereon would rent for $15 per month. Defendant asked such order in relation to the property as she was entitled to in law and equity, and that if necessary a trustee be appointed, to hold and manage it, paying the proceeds thereof to the said E. Rice and Caroline for herself and for the said children, in such proportions as the court may direct, etc.

Amendment of petition, alleging that no improvements had been made upon lots 1, 2 and 3 since the marriage except the dwelling house; that at the time of the marriage there was a dwelling house upon said lots, which was occupied by the parties as their homestead, until the year 1856, when defendant sold said house and appropriated the proceeds of the sale to the erection of the new one; that any excess in the cost of the new one over the price for which the old one was sold, was paid by plaintiff out of his separate funds.

The cause was called for trial at spring term, 1857, and the jury being impaneled, the court submitted to them the following issue: “Are the improvements on lots Nos. 1, 2 and 3, in block No. 29, together with the household and kitchen furniture, the common property of plaintiff and defendant? If aye or no, so say by your verdict.” The evidence was to the effect that plaintiff owned the lots at the time of the marriage; that there was then a dwelling house and some other improvements thereon; that the plaintiff at same time was doing a...