Rose v. Another

• Decision Date: 01 January 1854
• Citation: 11 Tex. 324
• Parties: ROSE v. HOUSTON AND ANOTHER.
• Court: Texas Supreme Court

11 Tex. 324

ROSE

v.HOUSTON AND ANOTHER.

Supreme Court of Texas.

1854.

To maintain the character of separate property, it is not necessary that the property of either husband or wife should be preserved in specie or in kind. It may undergo mutations and changes, and still remain separate property; and so long as it can be clearly and indisputably traced and identified, its distinctive character will remain. (Note 53.)

Quere? How far the husband's right to “the sole management of the wife's separate property, during the marriage,” extends, as respects third parties contracting with the husband; it does not extend to any transaction which the third party knows to be a fraud upon the wife.

Error from Walker. Houston brought suit against Wooton, on his promissory note for the payment to the plaintiff, of five hundred dollars. The plaintiff in error, intervening, filed her petition, claiming the note sued on, and praying judgment upon it. Her petition alleged, in substance, that previous to the making of the note, she, being a married woman, the wife of one Granville Rose, was the owner of a tract of land, her own separate property, derived by inheritance from her father: that, jointly with her husband, she sold and conveyed to the defendant Wooton a part of the land; and that he executed to them his promissory note for the purchase money; that her then husband and the plaintiff afterwards, without her knowledge or consent, and for the purpose of defrauding her of her rights, delivered said note to the defendant, and received of the defendant, in consideration and exchange therefor, the note now sued on, made payable to the plaintiff, for the sum remaining due upon the former note; that, therefore, the consideration of the note, sued on, was her separate property, and that this was well known to the plaintiff, at the time he obtained it; that she had since obtained a divorce from her said husband, ““who was, and is insolvent.” To this petition there was a general demurrer, which the Court sustained. There was judgment for the plaintiff on the note; and the party intervening and the defendant obtained, each, a writ of error. The former, only, prosecuted her writ of error; and assigned as error the judgment of the Court dismissing her petition, and the final judgment rendered for the plaintiff.

W. A. Leigh, for plaintiff in error. Are the proceeds of sales of separate property, separate property? I think they are. ( Vide, 3 Term R., p. 620, in notes; Tuck, Com., Vol. 1, p. 112, and other authorities there cited.) Property purchased with the money of one of the parties, is the separate property of the party with whose money it was purchased. (4 Tex. R., 187; and 7 Tex. R., 6.) And is not the money, the proceeds of sale of separate property, also separate property? The authorities above referred to sustain me in the position that it is separate property.

Yoakum & Pranch, for defendant in error. This is one of that class of cases which show the necessity of enforcing a well-known rule in Chancery Courts, in regard to intervention, i. e.: to require them to make oath that there is no collusion between them and either party to the...