21 Tex. 58 | Tex. | 1858
There is no appeal from the decree for divorce. The question at issue is in relation to the property. The lots one, two and three are admitted to belong separately to the husband, but the improvements made upon them after the marriage, and the household and kitchen furniture, were claimed by the wife, and found by the jury to be community property. The charge of the Court was with reference to this issue; and, considered, as a whole, was substantially a correct exposition of the law. Its substance was, that all onerous acquisitions, after the marriage were common, unless it was proven that they were procured by the separate means of one of the partners ; and after thus stating the legal conclusion on a given hypothesis of facts, he required the jury to apply the law to the facts of the case in evidence, and to say by their verdict whether the improvements, &c., did or did not belong to the community. It was certainly within the province of the jury to determine from the facts, under the instructions of the Court as to the law, what was the status of the property ; or whether it belonged to the husband, to the wife, or to the community. This power they exercise in every trial of the right of property ; and in fact, in all cases of a general verdict; this being the conclusion from both the law and the facts of the case.
But the verdict, so far as it finds the improvements on the lots to be community property, is correct only in a modified sense. They are fixtures, attached to the soil, and cannot in the nature of things be divisible in specie, where one of the joint owners has no interest in the land upon which they have been erected. Hence results the rule, that the community estate must be reimbursed-for the cost of buildings erected, by joint labors or funds, upon the separate property of one of the spouses; and, in effect, this vests the improvement in that spouse, and entitles the other to one-half of the cost. This was the positive rule under the Spanish Code; and such is
The verdict of the jury, that the improvements are cobl. munity, need not be disturbed; and further proceedings, if deemed advisable, may be had to ascertain the cost of the buildings.
The only question which remains is as to the custody of the children, and the division, or rather disposition, of the estate of the parties. The evidence which was adduced on the issue of divorce is not in the record. There is no evidence, or at least not all of the evidence, to show the grounds upon which the custody of the children was first taken from the father, and in the second place from the mother, and given to her father—the grandfather of the children. The Court had authority to remove the children from the custody or guardianship of both of the parents. The benefit of the child, which is the highest consideration, may require this removal The interests of children, and of the public, in their morals and education, are superior to the claims of parents ; and the latter must yield when they come in conflict. Wo must presume that there was no error, and the Court adjudged rightly in awarding to the grandfather the care, management and education of the children.
The principal difficulty, in the cause, is with regard to the disposition of the property. Under the supposition that the improvements were of the community, the Court directed the receiver to take charge of them, manage, rent or lease them to the best advantage, and apply the proceeds to the education, maintainance of the minors, &c. There is an incongruity in this mode of proceeding, which is not easily reconciled. The land belongs to the husband ; and there is an apparent, if not a real incompatibility, between the rights of the owner of the soil and one who claims to enjoy, use and control the improvements, but without any right, interest or control over the land.
The property in this case is but small in amount; not at all sufficient to maintain the parents and children, or even the children separately. The Court has, in substance, adjudged, or intended to adjudge, that the proceeds of the whole property should be applied to the benefit of the minors.
If these children had been entrusted to the father, he would have been bound for their maintainanee; if to the mother, the funds, if there be any, must have been furnished by the father for their support; and when given to a guardian, it is but reasonable that such disposition should be made of the estate of both father and mother, as may be sufficient for their maintainanee, education, &c. The reasons why those who have brought children into the world, should support and protect them in their helplessness and infancy, will suggest themselves to every mind. They are enforced by instinct, and by laws human and divine. In making the division of the property, Courts must protect the children, as well as the parents, from injustice. The Court below seems to have acted on the supposition that the community property could alone be set apart for the benefit of the minors. But this is a mistaken view of the law. The provision about the division of the estate of the parties is found in Statutes where community property is unknown. (Fitts v. Fitts, 14 Tex. R. 443.) The
The wife does not complain of the decree, as to her community rights. But the Court can adjust the rights of the parties as may be most equitable.
■ It is ordered that the judgment be reversed, and that the cause be remanded with direction to enter a decree in conformity with this Opinion, an'd so as to adjudge the use of the whole of the property for the education and support of the minors, with reservation of the fee of the husband; and, of course, with the usual orders that the receiver or trustee shall be under the supervision of the Court,, and its orders made from time to time.
Reversed and remanded.
