Schuster v. Bauman Jewelry Co.

• Decision Date: 20 December 1890
• Citation: 15 S.W. 259
• Parties: SCHUSTER <I>et ux.</I> v. BAUMAN JEWELRY CO.
• Court: Texas Supreme Court

15 S.W. 259

SCHUSTER et ux. v. BAUMAN JEWELRY CO.

Supreme Court of Texas.

December 20, 1890.

Appeal from district court, Bowie county; JOHN L. SHEPPARD, Judge.

F. M. Henry and Henry & Henry, for appellants. Talbot & Turner, for appellee.

GAINES, J.

This action was brought by the appellee to recover of appellants, F. L. Schuster and Sophia Schuster, his wife, three separate parcels of land in Bowie county. One, a tract of 20 acres, was conveyed to the wife February 17, 1881; another, a city lot, January 19, 1882; and the third, also a tract of 20 acres, September 26, 1885. The husband being indebted to appellee, the latter, subsequent to the last conveyance, caused an attachment to issue against his property, and to be levied upon the lands in controversy. A judgment was obtained against Schuster in the attachment, and, by virtue of an execution issued thereon, the lands were sold by the sheriff, and were bid off by, and conveyed to, the appellee. Notice was given at the sale that the lands were claimed by Mrs. Schuster, as her separate property. Whether they belonged to her separate estate or not was the question upon the trial of the case. The trial resulted in a verdict and judgment for the plaintiff for an undivided two-thirds of the first parcel, and for the whole of the third; and for the defendant Mrs. Schuster for the whole of the second, and an undivided third of the first. The title of the defendant Mrs. Schuster to each parcel of the land in controversy was dependent upon a different state of facts, as disclosed by the evidence. The court, in its charge to the jury, did not apply the law to the facts of each of the three transactions, but gave the following general instructions: "You are instructed that the judgment which has been offered in evidence before you, in favor of plaintiff, against F. L. Schuster, and the execution issued on said judgment, the levy of the same on the land in controversy, and the sheriff's deed thereto, will authorize you to render your verdict in favor of the plaintiff for the land in controversy, unless you believe from the evidence that the land in controversy is the separate property of the defendant Mrs. Sophia Schuster, that it was purchased and paid for with money given to her by her mother, and that the plaintiff had notice that the land in controversy was the separate property of Mrs. Sophia Schuster at the time they purchased it at sheriff's sale, in which event you will find for the defendants." And again: "The burden of proof is on Mrs. Sophia Schuster to show by a preponderance of evidence that the land in controversy is her separate property; that it was purchased and paid for with money given to her by her mother; and, if she has failed so to show, you will find for plaintiff." It is complained that these instructions were erroneous and misleading. They are correct as applied to the lot conveyed to Mrs. Schuster, January 9, 1882; and for that lot the verdict and judgment were in her favor. But, as to the tract of land previously purchased, they were not strictly correct, and, as we think, may have misled the jury to her prejudice. That tract of land was purchased for, and conveyed to, her, and at the time of the purchase she paid $100, in money given to her by her mother. There were two deferred payments, each for $100, for which she and her husband gave their promissory notes to the grantors in the conveyance. These notes were paid with money borrowed by her for the purpose. The money so borrowed was repaid with funds given to her by her mother after the deed was executed. The husband testified to these facts, and, also, that he did not buy the land for himself, but for his wife. There was no testimony tending to any contrary conclusion. He also swore that at the date of the transaction he was solvent, and gave the dates of several gifts of money to his wife by her mother; the several items amounting to $1,600. The principle applied in Ullmann v. Jasper, 70 Tex. 446, 7 S. W. Rep. 763, is the law of this case. There, the wife, having separate funds, purchased two lots partly on a credit. For convenience, the cash payment was applied wholly to one lot, the other being bought wholly on a credit. The deferred payment was made with the wife's means, though the note of the...