159 S.W. 1056 | Tex. App. | 1913
I. Leslie rented a farm, the separate property of Mrs. Annie Gallegley, wife of T. B. Gallegley, for the year 1912. For the use of this farm the tenant agreed to pay one-third of the corn and one-fourth of the cotton raised by him during the year. This rental amounted to 3 bales of cotton and 25 bushels of corn. A. R. Hanks, who held a judgment against T. B. Gallegley, procured the issuance and service of a writ of garnishment upon Leslie to subject this cotton and corn to the payment of the judgment. The garnishee answered, alleging the rental contract above mentioned, and the fact that he held the amount of cotton and corn mentioned, which belonged to Mr. and Mrs. Gallegley, as rentals. He further alleged that P. E. Pope was claiming a mortgage lien upon the cotton and corn, and prayed that Pope be made a party to the suit that his rights might be determined. Pope then intervened, alleging a mortgage lien upon the crops superior to the lien created by the service of the garnishment. Upon the trial it was shown that Pope held a promissory note executed by Mrs. Annie E. Gallegley, together with a mortgage executed by her upon the rents on the farm for the year 1912, neither of which instruments were signed by her husband. These instruments were executed and delivered to Pope February 1, 1912, and the mortgage was filed for record as a chattel mortgage August 3, 1912. The writ of garnishment was issued August 26, 1912, and served upon the garnishee August 27, 1912. The only contested issue upon the trial of the case and upon appeal here is whether the garnishment lien or the intervener's mortgage lien should have priority over the other. The case was tried by the court without the assistance of a jury, and judgment was rendered in favor of the intervener upon the issue just stated, from which judgment the plaintiff, A. R. Hanks, has appealed.
The uncontroverted testimony established the fact that Mr. and Mrs. Gallegley were living together as husband and wife in the town of Alvarado at the time the mortgage was executed. They had a daughter who was then sick and in need of medical treatment, and the money borrowed from inter vener was for the purpose of meeting the expenses of such treatment and for the support of the family. The execution of the note and mortgage by Mrs. Gallegley was by and with the consent of her husband.
It is well settled by the authorities of *1057
this state that crops grown upon land which is the separate property of the wife are community property. Conner v. Hawkins,
The only evidence introduced by plaintiff was his judgment against T. B. Gallegley and the writ of garnishment with the officer's return showing its service, and no evidence was introduced by intervener to show that prior to the service of the writ plaintiff had actual knowledge of the mortgage and of the circumstances under which it was executed. Thus it will be seen that the question upon which our decision must turn is whether or not the record of the mortgage was constructive notice to plaintiff of its execution, and of the fact that Mr. Gallegley had authorized his wife to execute it.
It is well settled that a deed to land, the community property of the two spouses, executed by the wife alone, but with the assent of the husband, will convey title. Thomas v. Chance,
In the case of New England Nat. Bank v. N.W. Nat. Bank,
It will be noted that in the case of Roos v. Basham, supra, the title to the community property conveyed by the wife stood in her name. Thus the legal title was vested in her, although the power to convey it was by the statute vested exclusively in the husband. Stiles v. Japhet,
Reversed and rendered.