Story v. Marshall

• Citation: 24 Tex. 305
• Parties: WILLIAM R. STORY v. F. M. MARSHALL AND WIFE.
• Decision Date: 01 January 1859
• Court: Supreme Court of Texas

24 Tex. 305

WILLIAM R. STORY

v.F. M. MARSHALL AND WIFE.

Supreme Court of Texas.

1859.

A husband may make a gift or grant of the community, or his separate property, to his wife, by a conveyance directly to her, without the intervention of trustees.

A deed to the wife, for property purchased by the husband, with community funds, imports, in the absence of evidence of a different purpose, that it was the intention that the property should become the separate estate of the wife. 20 Tex. 389;30 Tex. 104.

A deed from husband to wife, purporting to be for a valuable consideration, if without consideration, will be upheld as a donation or gift. 7 Tex. 576;14 Tex. 443;16 Tex. 286, 314;27 Tex. 507.

The prima facie presumption arising from a deed of the husband to his wife, for community property, is, that it was intended to change its character from community to separate property of the wife.

A subsequent sale of the property, by the husband, does not rebut this presumption; and the deed is effectual against such subsequent purchaser. 16 Tex. 314.

APPEAL from Bexar. Tried below before the Hon. Thomas J. Devine.

This was an action of trespass to try title brought by John F. Marshall and his wife, Mary Julia Marshall, to recover, in right of the wife, from William R. Story, two lots in the city of San Antonio.

The lots in question were originally the community property of John Farrell and his wife Mary Jane Farrell. On the 6th of May, 1853, John Farrell, executed a deed for the lots to his wife. The deed purported to have been made in consideration of $100; but it was proved upon the trial, by the attorney who drew it, that this was merely nominal, and had been inserted by him in the deed, when in fact, nothing was paid by the wife for the lots. Mary Jane Farrell died about July, 1854. The plaintiff, Mary Julia Marshall, was her only child. Subsequently to the death of his wife, Mary Jane Farrell, John Farrell sold the lots to the defendant, William R. Story, and executed to him a deed therefor.

A jury was waived, and the cause submitted to the court, who gave judgment in favor of the plaintiffs, for a title in fee to two-thirds of the lots, and in favor of the defendant, for an estate for the life of John Farrell, in the remaining third, with a remainder in fee to the plaintiffs; from which the defenddant appealed.

J. A. & George W. Paschal for the appellant.

1. The recital of a valuable consideration, is a mere receipt, which may be contradicted, enlarged, or varied by parol. Humphries v. McCraw, 5 Ark. 62; Skaife v. Jackson, 1 Barn. & Cres. 421; 1 Phil. Ev. 108; Cowen's notes on same work, 419, 420, on part 1st, 2d book, page 547.

2. There is no evidence that the deed was a mere gift. And we contend, that although a husband may convey to his wife, for the purpose of giving her property, when it is not done to defraud creditors, or may sell to her, for a valuable consideration, yet when there is no consideration paid, and no intention to give can be made to appear, the property simply remains community acquests and gains. It might possibly be different, were either conveying the separate property of him or herself; but the community cannot be destroyed, without an expressed intention to do so.

And even if a deed were for a valuable consideration, it is not to be overlooked that the presumption is in favor of community property. Higgins v. Johnson, 20 Tex. 394. This case seems to make the whole turn upon the intention of the husband, which, in that case, was proved. But it is not decided that the mere deed of the husband establishes his intention of a gift. His sale to a stranger, soon afterwards, shows that he did not understand that he had lost his dominion.

The general principle is that a deed for a purported valuable consideration, cannot be regarded as a gift, because the recitation excludes the intention of gift, even though it may be false. Bla. and Kent, Com. tit. Deed; Chit. Contracts. The equity of this case demands a reformation of...