Slator v. Neal, Case No. 5519.

• Decision Date: 26 May 1885
• Docket Number: Case No. 5519.
• Citation: 64 Tex. 222
• Court: Texas Supreme Court
• Parties: JEFF SLATOR v. JOHN G. NEAL.

64 Tex. 222

JEFF SLATOR

v.JOHN G. NEAL.

Case No. 5519.

Supreme Court of Texas.

May 26, 1885.

ERROR from Llano. Tried below before the Hon. John C. Townes.

The opinion states the facts.

W. W. Martin and Wa. H. Miller, for plaintiff in error, cited: Wright v. Hays, 10 Tex., 130;Cheek v. Bellows, 17 Tex., 613.

W. T. Dalrymple, for defendant in error, on the question of innocent purchaser, cited: Sperlock v. Sullivan, 36 Tex., 511, and authorities cited; Case v. Jennings, 17 Tex., 673.

On abandonment, he cited: Carothers v. McNese, 43 Tex., 224;Cheek v. Bellows, 17 Tex., 617;Fullerton v. Doyle, 18 Tex., 13;Forbes v. Moore, 32 Tex., 199.

WATTS, J. COM. APP.

While the appellee was confined in the penitentiary under a conviction for a felony, his wife sold to the appellant between fifteen and twenty head of cattle, the community property of appellee and his wife. Having served some twenty-two months of his term, appellee was pardoned, returned home and instituted this suit to recover the cattle and their increase. While the pleadings are quite meager, still, from the findings of the court and the evidence adduced, it seems that the recovery was had upon the ground that there was no necessity for the wife's making the sale; hence she had no authority to make it, and that she intended thereby to defraud the husband.

Among the findings of the court are the following:

“5th. That said sale was not made by her to procure necessities, nor in a bona fide effort to manage and control the said community estate of herself and said husband, but that the same was made with the intent to defeat the rights and interest of plaintiff in said property and defraud him thereof.

6th. That the defendant had constructive notice of said intent and was not a purchaser for value.”

As a conclusion of law the court found that, under the circumstances, the wife had the right to sell the community property, but only for the purpose of supplying herself and children with necessaries, or in the bona fide effort to manage and control the property for the best interest of herself and husband.

It appears that appellee was convicted and sentenced to a term of two years' confinement in the penitentiary about June, 1881, and the sale was made to appellant about April, 1882. From the evidence it appears that Mrs. Neal had secured loans of money both from Moss and Campbell, which amounted in the aggregate to $90. And she testified that she had borrowed this money to enable her to purchase necessary supplies for herself and children, and that she made the sale to appellant so as to pay these debts and purchase other necessaries for herself and children. And also that Campbell paid her the money for the cattle purchased by appellant.

It appears that at the time, Campbell owed the appellant $256, the value of the cattle, and when appellant made the purchase, Campbell settled the debt by paying Mrs. Neal the money for the cattle.

This seems to have been the first sale and delivery of the community property made by her, after the conviction of appellee.

Appellant testified that, at the time he bought the cattle, he understood Mrs. Neal was making the sale to raise money for the support of herself and children, and he knew of no other means by which she could support herself and children than by a sale of the cattle, and that, so far as he could know, she was in necessitous circumstances at the time.

There is no evidence in the record whatever tending to show any bad faith upon the part of appellant in the matter, nor is there any evidence tending to show any notice, either actual or constructive, upon his part, of any wrong or fraudulent intent of Mrs. Neal in making the sale. And it may be assumed that the court intended, by “constructive notice,” that the appellant was not a purchaser for value, as he did not himself pay the money to Mrs. Neal, and the payment to her by Campbell was only in the discharge of a debt due by him to appellant. In this view of the matter we are of the opinion the court below was in error. What difference could it make whether appellant collected the money from Campbell and paid it to her directly, or whether Campbell paid it for him? He parted with the consideration, for by the transaction his claim upon Campbell was discharged, and the money paid to Mrs. Neal for the cattle.

Now the fact that, subsequently to this sale, Mrs. Neal was guilty of indiscretions with Campbell, could not affect the good faith of appellant in making the purchase. It seems that up to and after the sale, she was residing upon the place provided by appellee, and to outward appearances seemed to be living as an honest, discreet wife. True, Campbell at the time was aiding her in the control and management of her affairs, but it was subsequent to the sale that he moved her to his own place, and there became over-zealous in looking after her welfare.

There is not anything in the record indicating any knowledge by appellant of bad faith in Mrs. Neal in reference to the sale, while there is evidence to the effect...