16 Tex. 663 | Tex. | 1856
This suit was brought by the plaintiff in error, to recover her community share of a negro woman and her two children, conveyed by her husband, Spire Hagerty, after the plaintiff had commenced a suit against him for a divorce. The petition alleges that this pretended sale was made without consideration, and with intent to defraud the plaintiff of her community share in the said slaves ; and, though not precisely averred, circumstances are alleged, from which an inference is attempted to be drawn, that it was the design of the conveyance to the defendant in error, to make the slaves free. Notice that the suit for a divorce had been commenced was averred.
The suit was brought and sought to be sustained under Art. 855, Hartley’s Digest. It is as follows : “ That on and after
But, to return to the Statute under which this suit is sought to be sustained, the language, in throwing the gist of the supposed infirmity on the party impeaching it, is somewhat peculiar, and seems to give to the conclusiveness of the opinion of the judge and jury, on the proof, more than is in general accorded to their opinions. In ordinary cases a Judge may not be convinced that the jury have been correct in their finding on the evidence ; yet, if not satisfied that they are wrong, he will not disturb the verdict, and in like manner the revising Court in reviewing the question that is often presented, whether there is error in refusing to grant a new trial, asked for
But we are not disposed, in this case, to give any weight to a distinction of this sort, and we will dispose of it as an ordinary case of overruling a motion for a new trial. We have said that there is no restraint on the power of the husband to alienate a portion of the community property after suit for a divorce, unless such alienation is made with a fraudulent view of injuring the rights of the wife. The evidence in this case is far from fixing that motive on the alienation of the husband; and if such motive can be sustained at all, it is from the circumstances attending the transaction. If free from such fraudulent intent, it is not material whether the money acknowledged in the bill of sale was actually paid or not; but the truth of this fact of actual payment is left uncertain ; and on that particular fact the jury might well have found one way or the other without subjecting their finding to reversal. If the value of the property in its relative proportion of the amount of the means of the husband, would have the effect to injure the wife’s interest or rights, it would be a ground for a presumption, that such was the object of the alienation. But the evidence shows that its value was so very small and trifling, in proportion to the means in the husband’s hands, out of which the rights of the wife could be secured as to her share in the community, that it rebuts the possibility of its having any such object in view. The highest estimate put on the property alienated, by the evidence, is about fifteen hundred dollars, out
The plaintiff could, in this case, have had her rights allowed to her, in the property so alienated, when the partition of the community property was adjusted, or she could have sued the executors of her husband for the amount to which she was so entitled of the property alienated ; and she may yet do so, unless barred by the limitation of time.
In the argument of the plaintiff’s counsel, an effort was made to impeach the alienation, on the assumed hypothesis that there was an adulterous intercourse between the mother alienated, and Hagerty, the husband of the plaintiff, and that one of her children, conveyed by him, was the issue of such adulterous intercourse ; and that the object of the husband in conveying them to his sister, was to secure their freedom. This
The bill of exceptions to the ruling of the Court shows no ground of error to reverse the judgment. Hughes, being a .party defendant, could have been a witness, provided he was willing to give evidence; but he had a right to refuse, and this is the only ground presented by the exceptions worthy of notice. The judgment is affirmed.
Judgment affirmed.