Andrus v. Randon

34 Tex. 536 | Tex. | 1871

Walker, J.

On the .twenty-first day vf May, 1861, David Randon and his wife, Nancy Randon, with B. F. Terry as her .trustee, entered into written articles of separation, by the terms of which a .division of their community property was agreed upon between them; and wherein, after agreeing upon the disposition fo be made of certain lands, slaves and other property, it is agreed .as follows:

“ The party of the first part (David Randon) covenants and agrees with ,the party of the second and third part, that he will divide the cattle, horses, mules, hogs, stock, wagons, carts, farming utensils, and all other community property, when requested.”

Under this agreement it is admitted by both parties that all the property had been divided, except money which was in the hands of R. & D. G. Mills at the date of the deed of separation.

It is also admitted by the parties in their statement of facts, that at the time of the commencement of this suifc there was in the hands of R. & D. G. Mills the sum of §1519 47; and it was proven upon the trial that there was in the hands of R. & D. G. Mills, to the credit of David Randon, the sum of §21,831 12, at the date of the contract of separation, and that this sum was principally realized from the sales of cotton raised on David Randon’s plantation in Fort Bend county, and-sold by the house of Mills as commission merchants, previous to May, 1861.

It was also in proof that at the date of the institution of this suit, the balance of said sum, above the §1519 47, had been drawn by David Randon after the execution of the deed of separation, and before the commencement of this suit.

The verdict of the jury Was as follows: “ We, the jury, find for the plaintiff against the defendant Andrus, as executor of the estate of D. Randon, deceased, §16,114 97 debt, and interest to date; also §1519 47, with interest to date, yet in R. & D. G. Mills’ hands, against said defendants R. & D. G. Mills, John R. Mills & J. W. Jockush, with costs of suit;” upon which verdict the court rendered judgment against the respective parties for the several sums so found by the jury.

There are two questions presented for our consideration. First, was the claim of Mrs. Randon barred by the statutes of limitation ?

This question is settled in Crawford v. Bender, decided at the present term.

Again, was the judgment against R. & D. G. Mills erroneous or not.

There appears to have been no objection made in the court below to the proceeding against these parties. It was not shown that the funds in their hands were necessary for the payment of debts, or any claim superior to the claim of Mrs. Randon. Such claims, indeed, must of necessity have been supported by strong equities to defeat her right to this small balance in the hands of R. & D. G. Mills, which was all that was left to her out of the $21,831 12 ip their hands at the date of the contract of separation.

We think there was no error in the judgment, and it is affirmed.

Affirmed.