Shaw v. Shaw

• Court: Texas Court of Appeals
• Writing for the Court: Pleasants
• Citation: Shaw v. Shaw, 111 S.W. 223, 50 Tex. Civ. App. 363 (Tex. App. 1908)
• Decision Date: 23 April 1908
• Parties: SHAW v. SHAW.

111 S.W. 223

SHAW v. SHAW.

Court of Civil Appeals of Texas.

April 23, 1908.

Rehearing Denied June 4, 1908.

Appeal from District Court, Harris County; W. P. Hamblen, Judge.

Action by Mary G. Shaw against B. W. Shaw. From a portion of an order, which appointed a receiver, defendant appeals. Affirmed.

Meek, Highsmith & Warren, for appellant. Vasmer & Briant, for appellee.

PLEASANTS, C. J.

This suit was brought by appellee, Mary G. Shaw, against her husband, B. W. Shaw, to have the property described in her petition declared to be her separate property, and to enjoin and restrain appellant from disposing of said property and converting the proceeds thereof to his own use. The petition alleges that plaintiff and defendant are husband and wife, and both reside in Harris county, Tex., that at the time of their said marriage plaintiff was possessed, in her own separate right, of property, real, personal, and mixed, of the value of $150,000, and that at said time defendant was possessed of no property whatever. Plaintiff avers that during the time of her marriage with defendant she has advanced to him, at his special request, large sums of money, the separate property of herself, and that defendant has invariably wasted and squandered such sums of money, and has always failed and refused to render unto her, out of the earnings of her separate estate, a support, and that the waste and extravagance of defendant has reduced her separate estate one-half in value. That at no time has defendant exercised any care in the management and control of her separate estate, but, on the contrary, has managed said property in the most reckless and extravagant manner, and has converted the separate property of plaintiff into money, and appropriated said money to his own use, to plaintiff's deprivation and damage. "Plaintiff alleges that defendant has collected large sums of money, the rents, issues, and profits of her separate estate, and has diverted same from legitimate use, and has appropriated same to his own use and benefit, spending such money in riotous living, and denying to plaintiff even a sufficiency thereof for her support. Plaintiff says that defendant has completely and entirely repudiated the duties incumbent upon him as her husband, as such duties relate to the management of her separate estate, and he is asserting the rights and powers of his position only for selfish purposes, and is diminishing, wasting, and despoiling her separate estate for his selfish use and personal benefit."

It is further alleged that plaintiff owns, in her separate right, a plantation in Ft. Bend county consisting of 718½ acres of land, with all necessary improvements and equipments for its cultivation, including horses, mules, and hogs, and also a store stocked with goods, wares, and merchandise of the value of $5,000; "that said store is now open, and being conducted by defendant herein, and the sales therefrom amount to about $40 per day; that defendant has purchased on a credit large amounts of goods, wares, and merchandise, and large sums of money are now due and owing to various persons, firms, and corporations, but plaintiff says she is unable to set out fully and specifically the amounts so due, or the names of the parties to whom due, because she says the defendant positively refuses to give her any information about said business, or inform her concerning same or its condition. Plaintiff further alleges that defendant is taking and converting to his own use the money arising from the sales at said store, and is not paying off the obligations and debts incurred in behalf of said business, which course will inevitably result in the ruin and bankruptcy of said business. And plaintiff alleges that defendant has threatened to sell the entire stock of goods in bulk, and that she is informed and believes and charges the fact to be that he has actually made attempts so to do; and plaintiff here now charges that his purpose and intent are to convert said property into cash, and appropriate the money to his own selfish use. Plaintiff avers that quite recently defendant has collected $1,200 insurance upon a barn, which was situated upon said plantation, and that he has sold and converted into cash, horses, mules, hogs, and other live stock, and personal property belonging to said plantation, and has squandered and wasted the proceeds thereof, except such part as she is informed and believes he has on deposit in the bank of T. W. House, of Houston, and J. H. P. Davis & Co., of Richmond, Tex., and plaintiff says that of these moneys defendant has steadfastly refused to allow her any part for her support, and threatens to withdraw same from said depositories, and appropriate it to his own use and benefit. Plaintiff avers that said plantation has been cultivated in part by persons to whom defendant has rented land for parts of the crops, and as far as he has been able, he has collected said rents in kind, has converted same into cash, and has squandered the money, to the detriment and injury of plaintiff. Plaintiff says that the crops grown on said plantation are not entirely gathered, and that some part thereof remain in the field, and she says it is defendant's declared intention to collect said crops in lieu of money for rent, to convert same into money, and appropriate such money to his own use and benefit to the deprivation of plaintiff. Plaintiff further alleges that of the unsold cotton, which defendant has collected as rent, there are now nine or more bales in the hands of William Christian, of Houston, Tex., and that defendant is endeavoring to sell said cotton, and appropriate the proceeds to his own use. Plaintiff shows unto the court that, in view of the allegations and statements of fact herein contained, and of the great wrongs and injuries, the deprivations which she has suffered and endured, and which she is about to suffer and endure unless defendant is restrained and enjoined as hereinafter prayed for, she will suffer irreparable wrong and injury; that she has no adequate and sufficient remedy at law. Plaintiff says that the interest and preservation of her separate estate, and the interest and preservation of the community estate of herself and husband, if any there be, require that some suitable person be appointed receiver, with power to take charge of said store and store business, continue such business, and keep the same a going concern until it can be profitably sold or otherwise disposed of, and that said person be also appointed receiver of said plantation, and authorized and directed to gather the remainder of the crops thereof, and to gather and collect the crops and amounts due from the...