Gatewood v. Scurlock Rutledge

21 S.W. 55 | Tex. App. | 1893

Appellant S.C. Gatewood, according to the testimony of herself and husband, J.C. Gatewood, was induced to join in the conveyance of their homestead, the separate property of the husband, in consideration of the proceeds of the sale becoming her separate property. In pursuance of this understanding, the homestead was conveyed and the money and notes received in payment were delivered to the wife as her separate property. Thereafter a portion of the money was invested in cattle, which, by the terms of the bill of sale, were conveyed to the separate use of the wife. Subsequently, thirty-six of these cattle were seized under execution as the property of the husband, and were promptly claimed by the wife, who prosecutes this appeal from a judgment rendered against her. There was a trial by jury, but the court instructed them to return a verdict for appellees; holding, in effect, that personal property received in payment for the homestead of an insolvent debtor, when transferred to the wife to be her separate property, upon the sole consideration of obtaining her consent to the sale, is not thereby withdrawn from the reach of the husband's creditors. The very opposite of this is decided in the case of Blum v. Light,81 Tex. 414, the facts of which are quite similar to the facts of this case. That case, however, was not reported until after the trial in this case. It follows, that the judgment must be reversed and the cause remanded for a new trial, in order that the jury, under a proper charge, may pass upon the facts and determine whether the transaction between Gatewood and wife is really what it purports to be or only colorable; and it is accordingly so ordered.

Reversed and remanded.