Wife v. Robertson

• Citation: 7 Tex. 6
• Parties: LOVE AND WIFE v. ROBERTSON.
• Decision Date: 01 January 1851
• Court: Supreme Court of Texas

7 Tex. 6

LOVE AND WIFE

v.ROBERTSON.

Supreme Court of Texas.

1851.

The presumption that property purchased during the marriage is community property is very cogent, and must be repelled by clear and conclusive proof; but where it is established that the property was purchased with the separate money of one of the parties, it remains, as in case of property received in payment of a debt due one of the parties, (McIntyre v. Chappell, 4 Tex. R., 187,) the separate property of the party with whose money it was purchased. (Note 2.)

Where the husband purchased a slave at the price of $800, paying at the time $330 of his separate money, and afterwards paying $300 “with profits made during the marriage,” leaving $170 unpaid at the time of his death, which balance was given to the heir by the creditor: Held, That the husband had an interest distinct from the community in the value of the slave proportionate to that part of the price paid with his money; the widow having a community of interest in the slave and his hire since the death of the intestate proportionate to that part of his price not so paid; that the remainder of his price, due at the time of the dissolution of the marriage, remained a claim against the community; having been given to the heir by the holder, the half of it chargeable to the heir's interest in the community was extinguished, and the remaining half was chargeable to the widow's interest in the community: Held, also, That, if found necessary to the proper distribution of the respective interests of the parties, a sale of the slave should have been ordered.

Appeal from Washington. This case had its origin in the Probate Court of Washington county, in a controversy between the appellant, Mary Love, formerly Mary Robertson, widow of Jonathan Robertson, deceased, and his only child and heir, Felix F. Robertson, (a minor, represented by his guardian,) respecting the ownership of two negroes, Peter and Finn. The widow claimed that they were community property, and the heir that they were the separate property of his father.

The facts, as agreed by the parties, were, that the said Jonathan and Mary were married in Texas in the year 1837. The husband died in 1844, leaving an only child, “who now claims the property” in right of his father. At the time of the marriage, there was owing to the husband, from the sale of his patrimony, $1,030, which he afterwards collected. With this money, in 1841, he purchased the negro Peter, at $700. The remaining $330 he, at the same time, paid in the purchase of the negro Finn, which he then bought at the price of $800. Of this last-mentioned sum the remaining $470 was not then paid, but $300 of the amount was afterwards paid by him with the profits made during the marriage; $170, with ten per cent. interest thereon from October 1, 1841, remained unpaid at the time of his death, and was due to T. D. Robertson, who gave it to the heir. The negro Peter is worth $1,000, and Finn $800. Both were hired at various prices during the years 1845, 1846, 1847, and 1848. The Probate Court adjudged the negroes, with their hire, to the heir, thereby deciding in effect that they were the separate property of the deceased husband. The District Court affirmed the judgment, and the widow and her present husband, David H. Love, who had become party to the proceeding, appealed.

B. Gillespie, for appellants. The statement of facts shows that these negroes were purchased during the marriage. They were returned as part of the estate. More than half of the price of the negro Finn was paid with the community property; by the judgment, all of the title of that negro is given to the heir. In Benj. & Slidel, 282, sec. 18, and 283, sec. 39, it is laid down that such purchases are community property.

A. Sneed and W. S. Oldham, for appellee.

I. As to what is held to be ganancial property, see 1 White's Recop. 61; Scott & Solomon v. Maynard, et ux., Dallam, 548.

That everything purchased during the marriage fell into the common stock of gains by the Spanish law, and, upon the death of either of the parties, was to be equally divided between the survivor and the heir, as decided in Scott & Solomon v. Maynard, will not be denied. But it is insisted that the rule does not apply to purchases made with the separate funds of either of the parties. But, unless it is manifested that the purchase was made with the separate funds of one of the parties, the presumption is that it was with the community funds, and that the rule is based upon that presumption.

II. In an ordinary partnership, property purchased or acquired by the firm is partnership property; but to make it so, it must be with the funds of the firm. A purchase of property by one of the partners with his individual money, although that property may be employed in the business of the partnership, does not thereby become the property of the firm, unless by special agreement or necessary implication resulting from the character of the property and the manner in which it is used, but remains to him who purchased it. If the nature of the property and the manner of its use would necessarily make it partnership property, upon the dissolution of the partnership compensation for its value would be allowed to him who furnished it. These are elementary and familiar principles, based upon reason and common sense, and need no authority to support them.

III. The law which declares that the property acquired by purchase during the marriage shall become the common property is equally clear and positive that that which each brings into the marriage shall remain his or her property. The construction sought to be placed upon the Spanish law would render these two provisions totally irreconcilable and repugnant, and would result, in almost every case, in reducing the separate property of the parties into community effects.

We conceive that the property brought into the marriage remains the separate property of the party to whom it originally belonged, regardless of the changes or conversions it may undergo there for the fancy or necessities of the parties, and that the property acquired by purchase, and becoming a part of the community effects, is that which may be acquired by other than the separate funds of the husband or wife. (Ducrest's Heirs v. Bijean's Estate, 4 La. Cond. R., 482.)

WHEELER, J.

The inquiry presented by the assignment of error is, did the title to the property purchased by the husband during the marriage with the money which he received...