69 Tex. 586 | Tex. | 1888
Mrs. Hattie Jones and her husband, J. H. Jones, brought this suit against T. J. Epperson and the other appellees, to recover damages for an alleged trespass in the seizure and sale under process of a stock of liquors, etc.,
The sole question in the case was as to the ownership of the goods — Mrs. Jones claiming them as her separate property, and the appellees alleging that they were the community property of Mrs. Jones and her husband, the defendant in attachment.
Upon the first trial this issue was determined in favor of Mrs. Jones, but upon appeal the judgment was reversed by this court. The evidence showed that the goods were bought partly for cash, the money paid being the separate property of Mrs. Jones, and partly on credit.
On that appeal we held that a wife who was conducting business as a merchant must buy for cash only, and be ready to show that the money so used was her separate means. That if the profits made upon the sales of the goods were mingled with her separate money in the purchase, she must be prepared to show how much of her separate means she used in buying the goods. That the burden of proving this was upon her, and not upon the creditor seizing the goods for the husband’s debts. (65 Texas, 429.)
The cause was remanded for a new trial, but before this occurred Mrs. Jones died and the present appellants, her husband and only child, as her heirs, prosecuted the suit. The evidence developed on the second trial seems substantially the same as that introduced upon the first. It was shown that the goods were bought partly for cash and partly on credit, and that the cash payments were made with Mrs. Jones’s separate means. She seems to have conducted the business for more than a year before the levy; and whilst the burden of proof was upon those claiming under her to show how much of the goods seized under attachment were her separate property they utterly failed to do so, but left the matter in doubt, and the jury were bound to find that they were all subject to the suit. She had mingled all her purchases together; bought goods from time to time, presumably with the proceeds of such as were sold, as there was no proof to the contrary, and in all respects carried on the business as any other merchant, who buys for cash and credit, and invests the proceeds of the sale of his goods in the replenishment of him
The court below charged the jury in accordance with the opinion of this court in the former decision of this cause, and this charge is the principal error assigned on this appeal. Unless we should overrule our former decision the judgment must necessarily be affirmed. We. see no reason for changing our opinion and have repeated it in a case decided since the present was before us in the former appeal.
The grounds urged by appellant’s counsel can not avail, as it has been too frequently decided in our State that the profits of the wife’s separate estate are community property. The decisions from other States holding a different view can not prevail against the well settled principles of our court. Those cited from Pennsylvania are based upon the peculiar language of a statute different from our own.
The case cited from Pennsylvania holding that a wife may invest her separate property in merchandise and carry on business as a merchant in the same manner as a femme sole is based upon a statute in that State, which is different from our own and is no authority under our. statute and in direct opposition to our decisions upon the same question. There is no error in the judgment and it is affirmed.
Affirmed.
Opinion delivered February 3, 1888.
