217 S.W. 1108 | Tex. App. | 1920
The trial court erred when he charged the jury as he did, if there was testimony which would have warranted a finding that a partition of the community estate between appellee and his wife was effected, by which she became the owner in her own separate right of the land in controversy, or a finding that she acquired title to the land in her own separate right by force of the statute of limitations, or findings that appellee released to her the interest he otherwise would have had in her earnings while they continued to be husband and wife, and that she purchased and paid for the land with such earnings.
Appellants insist that a partition of the community estate between appellee and his wife was effected when he abandoned her, and cite, as supporting their contention Sears v. Sears,
"to his own use and benefit as his share of the community estate, and delivered to plaintiff the property in controversy (worth $600) as her part and share of said community estate."
If the allegations should be construed as charging that the appellee acquiesced in the retention by her husband of the $935, and accepted the land in controversy as her part of the community estate between them, the case was not unlike Rains v. Wheeler and Corrigan v. Goss, cited above. We have no doubt the court so construed the allegations when they said, in affirming a judgment in favor of Mrs. Battle:
"If the allegations noted were sustained by proof, and we must presume they were (in the absence of a statement of facts), plaintiff owned an equitable title to the property in controversy to the exclusion of any interest therein by her husband, and therefore, even if he made such a will as was pleaded by the defendant, it could not operate to effect plaintiff's said title."
Nor do we think appellants' contention that Mrs. Hardin acquired the title to the land in her own separate right by force of the statute of limitations should be sustained. That a wife cannot acquire title as against her husband under said statute was expressly decided in Cervantes v. Cervantes, 76 S.W. 790. And see Routh v. Routh,
It appears, therefore, that if the trial court erred when he instructed the Jury as he did, it must have been because there was testimony which would have authorized findings that appellee gave his wife the interest he was entitled to claim in her earnings while they remained husband and wife, and that she purchased and paid for the land with such earnings. There was no direct evidence *1110
of such a gift by appellee to his wife. So the question is, Would a finding that there was such a gift have been warranted by the circumstances of the case made by the testimony? It apeared that when appellee abandoned his wife and their minor children he left them unprovided for, otherwise than as is shown in the statement above; that he remained away until after the death of his wife about 15 years later; and that he never, after he abandoned them, contributed anything toward the support of either his wife or their children, nor claimed an interest in their earnings. We think the circumstances stated showed the case to be within the principle recognized in Wright v. Hays,
"All property acquired by either husband or wife during the marriage, except that which is acquired by gift, devise or descent, shall be deemed the common property of the husband and wife, and during the coverture may be disposed of by the husband only." Article 4622, R.S. 1911.
We think there is no error in the judgment of which appellants can complain, and therefore will affirm it.