Tannehill v. Tannehill

• Decision Date: 24 October 1914
• Docket Number: (No. 8021.)
• Citation: 171 S.W. 1050
• Parties: TANNEHILL et al. v. TANNEHILL et al.
• Court: Texas Court of Appeals

171 S.W. 1050

TANNEHILL et al. v. TANNEHILL et al.

(No. 8021.)

Court of Civil Appeals of Texas. Ft. Worth.

October 24, 1914.

Appeal from District Court, Comanche County; J. H. Arnold, Judge.

Action by Harriet Tannehill and others against Della Tannehill and others. From a judgment in favor of plaintiffs, the defendant named appeals. Affirmed.

J. P. Graham, of Comanche, for appellant. Goodson & Goodson, of Comanche, for appellees.

SPEER, J.

This was an action for partition brought by appellees against appellants, seeking to partition a number of blocks of land in the city of Comanche, wherein appellant Della Tannehill claimed, in addition to her one-third interest as heir, a fee-simple title to the E. 1/2 of the S. E. 1/4 of block No. 39 by virtue of a parol gift from her deceased brother, Milo Wright, the common source of title. After the evidence was in, the trial court instructed a verdict for the plaintiffs, and the defendant Della Tannehill has appealed.

The first ground of error alleged is that the court erred in overruling the disclaimer of J. A. Tannehill, appellant's husband, and in sustaining objections to his testifying as to statements by and transactions with the deceased, Milo Wright, tending to show a completed gift of the property in controversy to appellant. The argument is advanced that the recent act of the Thirty-Third Legislature (Acts 33d Leg. p. 61), enlarging the property rights of married women, and especially giving them control over their separate estates, makes it unnecessary for the husband to be sued with the wife in actions such as this, and makes admissible the testimony offered in the present case. While it is true the act in question does very materially enlarge the right of control of married women over their separate estates, it is also true the act does not expressly nor, as we think, by necessary implication repeal article 1841 of the Revised Statutes, declaring that:

"The husband and wife shall also be jointly sued for all separate debts and demands against the wife, but, in such case, no personal judgment shall be rendered against the husband."

In all suits against the wife, it is necessary that the husband be sued with her, and it would be error to dismiss as to him and proceed against the wife alone. Speer's Law of Married Women, § 296; Taylor v. Bonnett, 38 Tex. 521. Besides, if the husband were not a formal party to the action, he would yet have such interest in the subject-matter of the litigation as to preclude his testifying to a transaction with the deceased by which his wife became owner of the property. While the recent amendment already referred to gives the wife control over her separate property and over the rents from her separate real estate, it nevertheless does not change the character of such rents so as to make them the wife's separate property. They continue to belong to the community estate, and the husband, therefore, is the owner of a one-half interest therein. It follows he has a very substantial interest in the wife's separate lands, and such an interest as to make him a party, within the meaning of the statute forbidding one to testify to transactions with the deceased in suits by or against the heirs.

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