Mitchell v. Marr

| Tex. | Jul 1, 1862

Wheeler, 0. J.

On the authority of repeated decisions of this court, it must be held that the property conveyed to Mrs. Simpson, pursuant to the bond for title by Smith to her of the 13th of June, 1842, was community property. No doctrine is better settled than that property purchased during the marriage, whether the conveyance be in the name of the husband or the wife, or in the joint names of both, is to be taken prima facie to belong to the community. (Higgins v. Johnson, 20 Tex. R., 389, 394; Huston v. Curl, 6 Tex. R., 239.)

We see nothing in the evidence in this case to rebut the ordinary presumption, or take it out of the general rule. Neither the absence of Mrs. Simpson from the country at the time, nor the relations existing between her husband and the vendor, can have that effect upon any principle which has been recognized by this court. Though it appears from the conversation of the husband detailed by the witness Lewis, that the former may have had it in contemplation at one time to purchase property with the wife’s separate funds, there was no evidence that the property in question- was so purchased. There is, in a word, nothing to rebut the presumption of law that the property was community property. There was, therefore, no error in the charge of the court. There was no evidence to warrant the court in submitting to the jury any question of intention to vary the legal import of the bond for title and the conveyance to the wife.

It is insisted by the appellant that he is entitled to the protection of a bona fide purchaser, without notice of the title of the plaintiffs. This point was made by counsel in the case of Wilkinson v. Wilkinson, (20 Tex. R., 241,) but was not noticed in the opinion of the court, or sustained by the judgment. If the doctrine can be invoked in any case to defeat the title of an heir, whose right to his ancestor’s estate not being evidenced by writing is not susceptible of registration, it cannot avail the appellant in this case. There is no evidence that he paid the purchase money. (23 Tex. R., 443.) Moreover, his deed recites the bond for title, pursuant to which it was made, which was recorded and which discloses that at its date the vendee, Mrs. Simpson, was a married woman, the wife of John S. Simpson, whose estate the plaintiff claimg. The defendant is thus affected with notice of the plaintiff’s title.

There is no error in the judgment and it is affirmed.

Judgment affirmed.