Amend v. JahnsAmend v. Jahns
*1 against she could of sub- defend the lien claim sequent creditors the husband. of 922.)* (No. AMEND JAHNS et ux. et al. v. cases, [Ed. Note —For other §§ see Husband Amarillo. Texas. of Civil Feb. of Wife, <@=>121.] Dig. Dig. 432, 435-441; Cent. Dee. Rehearing, 1916. On 1916.) April 5, Appeal <@=1068(5) Wipe <@=>131(4) Separate Husband — Error — Refusal Instructions. of — — Burden of of Wife Actions Estate Proof. of the whole Where the found that exempt land claimed the wife as seeking certain to save Where the paid for with her husband’s creditors had been lands from execution levied separate funds, prejudicial to creditors, were her claimed that proportion refuse to paid by submit issue of lands, upon her show what the burden was to the land was for from cases, Appeal [Ed. Note.—For othor proof separate funds, se.e of which in the absence of <@= Dig. Error, 1068(5); Dig. Dec. § Cent. f presumed that of it the be would Dig. 475.] § Cent. cases, see Husband TEd. Dig. Wife, Cent. Dec. — <@=121 Separate Husband Wife <@=>133(7) Separate 2. Husband and Wife — Mingling — — Estate Funds of Wife Evidence—Sufficiency. Estate of Wife — Effect. held that the Evidence The mere fact that live stock and its increase to the with his the wife’s defeat her title to land wife, so as to defeat the lien claim of the hus- therewith. land band’s creditors to with its cases, [Ed. Note.—For other see Husband ceeds. Wife, Dig. 435-441; Dig. 432, Dec. §§ Cent. cases, [Ed. Note.—For other see Husband <@=121.] Wife, Dig. 491; Cent. Dec. — Conveyances <@=95(5) 10. Fraudulent <@=>49%(8) Separate and Wife Husband — Validity. Gift to Wife — Estate of Wife —Gifts—Evidence. gift creditors cannot cattle in While mere ground that it was to the wife on the of stock only which of prove gift thereof name insufficient pursuance of an antecedent may with the be considered it is evidence facts the husband branded would she be invested actually gift invalid, wife’s, that that the stock was things her, and the increase for cases, see Fraudulent other Note.—For consent, which them without her Dig. Dig. 268, Conveyances, Dec. §§ Cent. should on condition <@=95(5).] se- in land for which land she — Separate lected, <@=121 the in- and is as well as its sufficient show 11. Husband and Wife proceeds. Property crease be Wife —Wi-iat Estate Separate. cases, other see Husband and Held Note.—For Dig. Dig. Wife, <@=>49%(8).] Cent. Dec. The mere personal proceeds of wife’s <@=>133% Separate 4. Husband and Wife — was school Estate Wife —Evidence. fund, was due deferred affect the carry Evidence to the severalty it in wife’s the issue whether land claimed towife funds. from her exempt from husband’s creditors was her eases, Husband other separate property. Dig. 435-441; Dig. Wife, Dec. §§ cases, [Ed. Note.—For other see Husband and <@=121.] Wife, Dig. <@=>133%.] <@=>133(1) Separate 5. Husband and Wife Court, Coun- Sherman District Estate of Wife —Evidence. Judge. B, Hill, ; ty D. Evidence held certain horses others Amend W. S. Action wore of the their estate of the so that exempt Judgment de- issue and George and wife. D. Jahns husband’s creditors. appeal. plaintiffs Affirmed. fendants, and [Ed. Note.—For other see Husband and <@=> Wife, Dig. Gamewell, Dalhart, Stalcup, §§ I.W. R. E. Stratford, A. Tur- and H. B. K. Goree Separate 6. Husband and Wife Worth, Stahl ner, Ft. Estate of Wife —Evidence. Stratford, Crudgington Elliott, & may give The husband appellees. Amarillo, Works, community property, make it separate property, her fraud of made when it is not done in creditors, where such brought by HUFF, is an action O. J. This prior plaintiffs to the time at which judgment to foreclose came creditors of the of com- munity personalty 3-T, block of the Tex- wife was valid section No. against them. Company, Railroad as & New Orleans situat- see Husband and county, alleged by in Sherman them to be ed <@=> Wife, 266.] 925-928; judgment debtor, George property of their Jahns, D. Mrs. Nettie Jahns. V. <@=>121 Conveyance 7. Husband and Wife intervened in al- said to Wife —Husband’s Note for Price. leging that Where the wife’s funds were used in a cash signed and the husband property, and asked that it be decreed payment, taking as her the cloud the land in the wife’s name under abstracting appellants’ judg- created funds, should parties title to the land vested in be removed. There are several <@=>For Key-NumberedDigests cases see same ana KEY-NUMBERin all of error writ *2 184 SOUTHWESTERN REPORTER he ran the husband owned cattle of his riage. which purchased cattle the and crease from her father horses stock she owned at were riage, riage 8 head of per head, aggregating $320, es and note for husband and of horses funds sale of 16 went with her husband from their section at in this land Gray county, ed in land portion in to this ror to and thereof; deed that she had ferred both was lished, having plicated, statement to understand deferred community obligation. either the that struct proposition ond, [1] The $2S0, refusing husband, burden that it her condition she that the burden was on husband and wife given when her cattle the executed between Jahns and Before the selected for was some time in 1902. The a verdict for the one of instruct The evidence appellee, been the amount would be trial court erred one but the above will belonging cattle and head of paid down, received therefrom should be the increase therefrom after which also first was Mrs. for. The consideration and the for her thereunder paid of the obligated brand wife, to Sherman which the cattle sold was September, Mrs. these to the time of her signed by by her father charge a total received for the hors then it original land was out of her Amend to funds, and, same verdict her and if not so cattle claimed discussed agreed paid, and, would be bonus, cash Jahns’ agreed by was the pleadings part At the time of the mar propositions separate use, that two it is testified and horses were section, wife, herself testified, part time this case consisted of the the is to the effect that would have been er payment Jahns of which went the issues stock for the have been to their sale. She county, 1905. The three it father, the in when she looked debt in the appellee before and three head in marriage. if not the wife had a Jahns and are rather regarded refusing be a sufficient- and this horses, affirmative cash, to show what sections were the wife had us. not so estab her this case is regarded Jahns. The wife’s for the sum own, shows that pay on the land was shown shown, appellants, to look at marriage, land was presented her mar all, separate the balance of the fund home justified original may and one first horses. It the de which The which alon-e. and wife that some stock the wife when married her husband. The wife, mar husband branded plac sold, into The set aside on first Sec the in by cattle, in a he she consented to sell on condition proceeds be sufficient 19 Tex. Civ. cattle the cattle. were for the reason that scar was the es balance due wife’s wards, the the note for borrowed secured the bank wife’s ly colts, proceeds it should be land in by him, Gray time he ferred the them, that the increase were in the name of the and when he did her condition for at county, debts, [3] While the time after their the paid be considered with jury’s nevertheless evidence of such cattle. placed thereon; looked after sold,-and which and did remaining horses and some of given by under their husband and wife for the cattle of the question in stock was the and she selected the land also sold not branded with the wife’s brand should be invested in brand, to be derived from the sale cattle and sell them remaining the land for verdict We believe the facts perhaps and before she owned and that account. In thereon was Th-e the land fell a section of land in Sherman placed. not do the the marriage, prove the husband original cattle. He would which was used to county, horses. The together from a bank the was not to the increase authorize the explained by his testimony proceeds proceeds agreement, with a $400 both testified that ought without her father and the saw it that husband, branding purchased. so without her that it was cattle and land them, The cattle and horses Rhodes v. of the the deed that the de- in the bank from the mere and after stock should be wife, colts wife, land, together that it was gift, yet with not, paid by did $1,000, due, mortgage held sold some and at the same increase of the applied husband, circumstances. land, when the land from the hors- of the increase and the three to be used in not desire to for the this case the both husband his wife two the and own. consent, in pay it, at Alexander, understood which into which her brand we fact, two colts cheek on this case designate increase, the bank upon the time that and the not sell consent, to find in land agreed shown owned of the- After- of the short- When think with sum the- his the his the y. sue here and she selected the land ceeds were was lieve, as the have been for the ed, so certain that 2G ly cate that third denced and she could defend tion them the extent that tween the time the land was vest trust, If we way interested in evidence ment tained on given band community property, separate property fraud Bevy vested in 114 S. band in to be established band [4] It is not deemed [5] We finding [7] [6] the land George Jahns, understand gift, for the reasons regarded designated lienholders. wife. The The three first horses sold The evidences a must agreed thereto, when the of creditors. or whether it W. appellant Oo.v. stock. We believe this case it is whether the land held court’s in this acquired. that the horses were the her the second the increase of the believe the evidence unauthorized the land should sought give under an placed, the wife. sale of the land warranty the cash name was under' an Mitchell, it, we see wife controlled the charge fully property given therefrom. or assignment case shows Carter v. Sparks equitable and therefore were when estate. The the transaction necessary It is the settled 6 on the land. property. This, heretofore and all the facts trust, especial- express awas be foreclosed was overruled. L. R. A. 52 shown at They no subsequent contained to instruct a verdict into which wife; state, reason both the husband title to the to his under an not Bolin, it is on the by Jahns, Taylor, land thereafter title will be the wife. resulting proceeds, were This, the lien covered the is and for not the creditors original (N. S.) given. were of wife at the to her make-it discuss why, reasonably We think was the wife’s land should be The hus under App. 189, fact, creditors the hus- had be done overrul 99 rule, express a deed out we be- sought agree- go in no apart trust. when judg eight ques band, together indi well Tex. 381; hus evi the $320, ob W. found the tion of the rules wife. The exact amount therefore there the exact property, the reasons first above tained. charge. assignment which were charge by appellants. munity ing note for no evidence horses were the only portion ever, at the time cattle 30-odd head finding lected this section husband to the wife. The of her that her husband feat her of the stock, they mother her to the ished to that he sold band all the ed done believed ment between proceeds deposited it, She looked at the The The ease will be affirmed. The fourth [9,10] towards $600. There can be no hers, sold at and three which was afterwards selling that he were sold to evidence money. bank; immaterial, estate. The move, as to the paid $250, opinion, The verdict of The fact that They with the by of it he from the cattle proportion paid the horses out of the entire consideration for with his did sought details of and she selected the stock with and made the first on the bank, that she intrusted would let me have some the husband and wife that out “If with some of his cattle —about we hers, assignment did not her husband held it as head The in this was no the refusal of this sale. all. warranted the per head, jury, amount their regard took his mother’s of her I for the land for her. The governing cattle, promised in the money. is now asserted and later the mother wife testifies to that extent the land the mother of the hus- cattle, were hers. He took his given. investing case, the reason that property preparatory necessity of this find separate estate, sale. that she selected it. as a clear I out paid specially requested 16 herself, cattle, husband had still The let paid, as stated defeat head of which of her cattle, that she *3 thereby overruled for horses should The and that his him consent own;” evidence, renders the to her hus- $280, of the wife specifically wihch did not de “and se- case, presenta- mother’s her title there is and left in their total but the money; finding land.” ascer- agree- want- total- how- I they hers and and fin- my in- if REPORTER SOUTHWESTERN money. confusing them to believe defendant written contract question. without were hers Three horses The neces- not an issue in the to recite the as it was of the cattle increase sary of the oral terms designated apart jury might, were set the cordance with find in ac- necessary provisions, and not increased. her husband provisions state the change agreement to not a mere shows was contract, since, if the believed that it was community rights, governing but it the law payment, true contract of the verdict plea It was was such alone, of a would be for defend- view ant, without reference to its terms. an antecedent virtue of [Ed. Note.—Eor other sepa setting them aside to her but Dig. <@=5352(1).] property at and as her rate use Rights, Speer § 116. The anteced Marital *4 oe Error —Presentation Issues. agreement ent subsequent agreement, made before objectionable, presentation, if as con- Such place fusing the written contract not an the jury them to believe that alleged by the selection of defendant was harmless, issue expressed at the time and the intention interrogatory plaintiff was whether had afterwards, find it authorized the defendant, an or whether oral contract with understanding to make then the alleged contract defendant. was the written community 'cases, as well interest see Error, Dig. <§=> credi therefrom. appellant tors, years such and who were Special <@=>350(4) after this relation been fixed Trial Issues Func- tion. the husband and between compensation In a action for un- salesman’s permitted will not contract, der an oral wherein defendant claimed ground Tex. alone. employment that his was under a written con- tract, the refusal to submit Mar defendant’s 26 S. W. Jordan v. Civ. eentell, special issue to whether defendant on or Belcher, 357;W. Cone v. plaintiff a certain date ing covering in writ- mailed contract App. error, employment was not pay though dependent plaintiff the horses which wore sold As to issue as to whether accepted such contract should have been the same rule above special under the rule that the function of sues is to have the dence the is- Although apply. there was set out will determine from the evi- note, expressly agreed existence of the material facts respective parties. tween the husband was land' Trial, Note.—For other see that such deferred indebted- Dig. 829; ness should the wife’s horses. The evidence <@=>351(5) Requested Trial Issues —Sub- finally paid. mitted Issues. the debt action, refusing defend- to submit vested her with the entire estate in the land. error, requested special was not ant’s where the court the issue [11] The fact the land was school interrogatory asked its first plaintiff purchase money land, fund, contract whether had an oral and that due that terms, reciting defendant, or whether matter, not affect the under will employed under the written contract was out in the defendant’s stand the husband could so contract pleading. interest should be cases, see except existing as to creditors at Swearingen Reed, 2 Pleading —Admission—Statute. compensation In a salesman’s action for un- contract, para- in a which, The motion be overruled. der oral where defendants graph alleged of its answer facts by plaintiff true, acceptance constituted an employment, written contract of charged paragraph subdivision of such contract had such that he entered the service of defendant been delivered to BRIGGS-WEAVER MACHINERY CO. v. thereun- (No. 7442.)* PRATT. deny- year reply involved, plaintiff’s der for the ing the of the written contract and as- existence of Civil of Texas. Dallas. specific- serting upon, the oral contract sued 11, 1916. Rehearing March Denied ally denying paragraph of defendant’s each April 8, 1916.) contract, pleading setting the written save the ted in reference to which he admit- subdivision op 1.Trial Issues. —Presentation receiving from defendant such written con- compensation In a salesman’s action for due accepted it, tract, cient denial under was a but denied that ho suffi- contract, under an oral where defendant claimed Act, as amended the Practice employment that his was under a written con- Beg. 127), (Acts 33d c. and since re- in 1913 tract, pres- the court’s statement its formal Beg. 101), (Acts pealed 34th c. force at plaintiff suing entation of the issues that allegations trial, requiring'a reply to affirmative upon terms with contract, reciting oral its exact deny admit or them or of the answer to either deny any salary reference to commissions knowledge or information reference pay- earned and able, both were how concerning any form belief thereto the defendant denied was a written said the contract ting contract as omit- Pleading, any reference to the terms of the Dig. <@=>177.] pleaded, objectionable 355; Dec. as Cent. Digests <g=>For Key-Numbered other cases see same in all KEY-NUMBER for writ