Smith v. Strahan

• Decision Date: 01 January 1856
• Citation: 16 Tex. 314
• Parties: WATKINS L. SMITH AND OTHERS v. WILLIAM H. STRAHAN.
• Court: Texas Supreme Court

16 Tex. 314

WATKINS L. SMITH AND OTHERS

v.WILLIAM H. STRAHAN.

Supreme Court of Texas.

1856.

It is a general rule that the trust of a legal estate, whether taken in the names of the purchaser and others jointly, or in the names of others without that of the purchaser, whether in one name or several, whether jointly or successively, results to the one who advances the purchase money; the presumption being against a gift. [20 Tex. 389;21 Tex. 231;27 Tex. 457.]

But there are exceptions to this rule as well established as the rule itself, as where the deed is taken in the name of a child or in the name of the wife where the purchase money was the separate property of the husband; the presumption being in favor of a gift in such cases.

The presumption of trust, when the purchase is taken in the name of a stranger, as it is raised, so it may be rebutted by parol evidence.

And the presumption of an advancement, when taken in the name of a wife or child, may also be rebutted by evidence showing that the purchase was intended for the benefit of the husband or parent who advanced the purchase money

Arguments drawn from the incapacity of the wife, at common law, to acquire and enjoy property without the intervention of a trustee, have little or no force under our system.

At all events where the fundamental principle of the marital relations is, that, whatever may be the unity of persons, there is no unity of estates, there can be no such rule as that the wife cannot be a trustee for the husband, in any sense which would preclude evidence showing that, although property is in her own name, it was intended for the benefit of her husband.

The rational foundation for the presumption in favor of the wife is, that the purchase is intended as a provision for her; and this presumption will hold as well under our system as in others where the rights of the wife are not so much favored.

It may, and would, under the operation of our laws, be generally more easily rebutted than it would be where the wife has no interest in community property, and a very restricted right to separate property.

The intention of the husband, in taking the conveyance of community property in the name of his wife, has no effect upon either his own or the rights of the wife. The law prescribes the operation of such deed, irrespective of the motives in taking it in either the name of the husband or of the wife, or of both jointly, for whether taken in the one form or the other, the community character of the property is not changed. [20 Tex. 389;25 Tex. 103.]

The intention of the parties at the time of the execution of the deed, where the purchase money was separate property, is to determine its complexion and character; and antecedent or concomitant acts and declarations of the husband are to be regarded as parts of the transaction, and as evidence of his intention whether the purchase should be for the benefit of his wife, or of his own.

Subsequent acts and declarations, by a husband, are as ineffectual against the wife as they are against a child. The fact of a husband or parent, even when children are minors, going immediately into possession after such purchase, and always claiming and holding the land as his own, would, however, it seems to me, be some, though by no means conclusive evidence, of his original intention that the purchase was in trust for himself, and not an advancement.

Without argument we forbear the discussion of the important question, how far even the wife might be concluded in equity, by an arrangement for the settlement of family disputes, or for the partition of an estate, upon a reasonable consideration, even where the mode of assurance is not sufficient in law to convey the interest of the wife.

Error from Colorado. Tried before the Hon. Nelson H. Munger.

Suit by Watkins L. Smith, commenced September 12, 1853, against William H. Strahan, for the partition of certain four hundred acres of land among the heirs of Delilah Strahan, the deceased wife of said William. The other heirs, being three children of said Delilah and William, were made defendants. The plaintiff had married a fourth child, since deceased, leaving a child since deceased. The three other children, made defendants, two of them being minors and appearing by guardian, joined in the plaintiff's prayer for the partition. The father, William H. Strahan, alleged that the land, although the deed was taken in the name of his wife, Delilah, was paid for out of his separate property; pleaded the statute of limitations; alleged a settlement of the claim of the plaintiff by a transfer (filed as an exhibit marked O) to himself of all the interest of said plaintiff and his wife by them in 1849, in consideration of one hundred and fifty dollars; and suggested improvements of the value of upwards of seven thousand dollars. The plaintiff denied under oath the execution of the transfer pleaded by the defendant.

In answer to issues submitted, there was a special verdict as follows: Delilah Strahan was the wife of W. H. Strahan. Their children were Sarah F. Smith, Catharine Bailey, W. T. Strahan and Cincinnati Strahan. Sarah F. Smith and Watkins L. Smith were married. They had a child, which survived its mother, but is since dead. B. H. Bailey and Catharine Bailey (alias Catharine Strahan) were married and had a child which survived its mother and is now alive. The land in controversy was paid for by the separate property of W. H. Strahan. The deed from Patrick and Polly Reels to Delilah Strahan was not a gift or dedication to said Delilah from said W. H. Strahan. The land was vested in Patrick and Polly Reels at the date of their deed to Delilah Strahan. The plaintiff signed his name and that of his wife to the transfer marked O, made a part of the amended answer. Delilah Strahan died in August, 1844. Sarah F. Strahan married the plaintiff in 1846, and died in 1849, being about twenty years old at her death. The possession of W. H. Strahan of the land in controversy commenced in 1844 and continued up to the present time, and was adverse to all others. Mrs. Bailey died in the fall of 1851, being then about eighteen years old. William T. and Cincinnati Strahan were minors on the 12th of September, 1853.

On this verdict the court rendered judgment for William H. Strahan, the father, confirming the title to said land in him. Motion for a new trial overruled. The plaintiff below and the children joined in the prosecution of this writ of error.

There was a statement of facts, from which it appeared that all the facts found in the special verdict were either admitted or clearly proved, except as to the intention of W. H. Strahan in taking the deed in the name of his wife; as to the execution and intended effect of the transfer from Smith and wife to Strahan, and as to the adverse possession of the latter; as to which points the evidence was to the following effect:

C. Kelch, witness for defendant W. H. Strahan, stated that immediately after the purchase of the land in controversy, the defendant W. H. Strahan raised a crop of corn on said land that year, but he did not move his family on said land until after the death of his wife; that there were no houses there until after the death of Delilah Strahan; that witness lived in the neighborhood of defendant W. H. Strahan; that he knew of the purchase of the land in controversy, and of the payment of the consideration as admitted; that he carried the chain when the land was surveyed off at the time of the purchase; that in conversation between himself and said W. H. Strahan, the latter claimed the land in his own right; witness heard of no other claimant, and was surprised to hear that the deed was in the name of the wife; all of the defendants and plaintiff resided on the same land; Sarah F. Smith resided on said land until her death; her child lived on said land from the death of his mother until his death; and W. F. Smith lived on said land from the time of his marriage until he left in 1851; that W. T. and Cincinnati, minors, had lived with their father on said land from the time when he first moved on it, and still live on it; that Catharine Bailey lived on said land until her death, and W. J. Bailey has lived on it with his father, from the death of his mother, Catharine, up to the institution of this suit; and that W. H. Strahan has continuously occupied, used and cultivated the premises in suit, from the date of the purchase in 1844, down to this time.

The testimony as to the execution of the transfer marked exhibit O was contradictory, and a suggestion was also made that it contemplated merely the conveyance of certain improvements which Smith had erected on the land.

The plaintiff in error requested the court to charge the jury, that if they believe from the evidence that the land in controversy was purchased with the separate property of the defendant, W. H. Strahan, and that he had the deed taken in the name of his wife, Delilah Strahan, the presumption of the law is, that the land was donated to the said Delilah by her said husband, and it devolved on the said defendant, W. H. Strahan, to rebut that presumption by proof that she held the land from the date of the purchase thereof, for the benefit of, and in trust for, the said W. H. Strahan; which instruction the court refused to give, leaving (in the language of the bill of exceptions) the question of gift to the jury as a mere question of fact, and reserving the question of law to be applied by the court; and the court, after the finding, decided that property purchased with the separate property of the husband became and was his separate property, although he had the deed taken to his wife, as decided in Houston v. Curl, 8 Tex. 242. To which ruling the plaintiff and defendants excepted, etc.

J. H. Robson, for plaintiffs in error. It is well settled that where the purchase money is paid by the father, and the deed taken in the name of the son, no...