Tucker v. Carr

• Decision Date: 01 January 1873
• Parties: JOHN W. TUCKER AND WIFE v. R. P. CARR.
• Court: Texas Supreme Court

39 Tex. 98

JOHN W. TUCKER AND WIFE

v.R. P. CARR.

Supreme Court of Texas.

1873.

1. The mere fact that a deed or bill of sale is made to the wife alone during coverture is not even prima facie evidence of her separate interest in the property conveyed.

2. The rule would be different if the conveyance be made to the wife of property shown to have been purchased with the separate means of the husband, the presumption then being that he intended to make a gift of the property to his wife.

3. Neither the constitution nor article 1003, Paschal's Digest, make any distinction between real and personal estate, the separate property of the wife; and there is no other mode by which her separate property can be legally passed from her except in the manner prescribed by the statute over her separate acknowledgment.

4. It is error in a suit by husband and wife to recover separate property of the wife, to permit the defendant to give evidence of the husband's declarations of ownership in himself.

APPEAL from Victoria. Tried below before the Hon. T. C. Barden.

John W. Tucker and wife brought suit against R. P. Carr to recover personal property, claimed as the separate property of Mrs. Tucker. Carr plead:

1. General denial.

2. That the property was community, and held by the defendant under a purchase from the husband, John W. Tucker.

3. That the defendant held the property under a purchase from both husband and wife by a power of attorney, authorizing one Jones to sell for them.

4. That he held it under a purchase from the husband alone.

The evidence clearly traced the investment of Mrs. Tucker's separate funds in the property sued for, and which was sold by one Jones without any evidence of authority conferred on him by Mrs. Tucker.

The court below permitted a witness to testify that Jones and John W. Tucker were, together, attempting to sell the property in controversy to appellee, and that he heard John W. Tucker tell appellee that if Jones should come again, whatever trade he would make with Jones would be all right. He also stated that he heard John W. Tucker tell appellee that the property was his, and that he then had a bill of sale for it.

This testimony was objected to by appellant, and its admission was assigned for error.

The following, among other instructions, was given by the court, on the application of Carr:

“1. If the property sued for is the same that is embraced by the bill of sale from D. W. Snow to Frances Tucker, given in evidence in this cause, and if Frances Tucker was a married woman at the time the bill of sale was executed, then the law presumes said property was community property which the husband had a right to sell, and which might be safely purchased from the husband or his agent by any one who had no notice that it was separate property of the wife.”

The following instruction was asked by Tucker and wife, and refused:

“1. During the marriage the husband has the right to manage the wife's separate property, and to have possession of it, but no right to pass title to such separate property without consent of the wife, as shown by a privy examination as prescribed by the statute, or by full and satisfactory proof of perfect freedom and consent to the particular sale under consideration.”

The action of the court in giving the first instruction, and refusing the last, was assigned for error.

Verdict and judgment for R. P. Carr.

MCADOO, J.

We think the court entirely mistook the law applicable to this case, and erred both in the charges which were given and those which were refused.

The law on this subject has been so often and so thoroughly discussed in the previous opinions of this court, that we feel little inclined to elaborate them in this opinion. But as the cause must be remanded for a new trial, we deem it proper to lay down in this opinion the rules of law which govern it.

The property in controversy is claimed by the appellant, Frances Tucker, as her separate property, and that it was sold to the appellee by one Jones, without her consent, either legal or constructive. If it was her separate property, neither under the pleadings nor the proof was the sale so made as to bind her.

The husband himself cannot convey or sell the wife's separate property, whether the same be real estate or personal property; much less could he authorize, verbally or otherwise, a third party to do so.

The constitution makes no distinction between real and personal estate, the separate property of the wife; and the “act defining the mode of conveying property, in which the wife has an interest” (art. 1003, Pas. ...