Simons v. Simons
23 Tex. 344
Tex.
1859
Check Treatment
Bell, J.

The plaintiff in error, Paul J. Simons, was the plaintiff in the court below. The court rendered judgment, on the verdict of the jury, dissolving the bonds of matrimony between the parties; and a decree was also made, ordering a divi*347sion of the estate of the parties. From so much of the decree as makes division of the estate of the parties, the plaintiff below prosecutes this writ of error; and errors in that portion of the decree of the court are also assigned by the defendant in the court below.

We are not able to perceive, that there is any error in the decree made by the District Judge, ordering partition of the estate of the parties. The 4th 'section of the Act of January 6th, 1841, concerning divorce and alimony, provides that “the court pronouncing a decree of divorce from the bonds of matrimony, shall also decree and order a division of the estate of the parties in such way as to them shall seem just and right; having due regard to the rights of each party, and their children, if any; provided, however, that nothing herein contained shall be construed to compel either party to divest him, or her of the title to real estate, or to slaves.” This provision, taken as a whole, evidently intends to invest the District Court with the power to exercise, within reasonable limits, a discretion in making partition of property between persons, who are divorced by the court, from the bonds of matrimony. The object of the statute seems to be, to confer authority upon the District Court to make such a decree as will attain right and justice between the parties, under the circumstances which may attend the particular case, and under the limitation imposed by the statute itself. This was the view taken by this court, of this provision of the statute. of 1841, in the case of Fitts v. Fitts, reported in 14 Texas Rep. 443. To what extent the District Court may exercise a discretion to do what may seem to be just and right, in the division of the estates of parties in cases of divorce, it might be very difficult to determine, in such manner as to make a rule on the subject applicable to all cases. Of course, if the District Court should make such a decree, as would clearly be unjust to either party, or oppressive in its effect, that would be a violation of the power conferred by the statute; and such a decree would be subject to revision and correction.

In the case before us, the District Judge caused the jury to *348ascertain by their verdict, the amount of the plaintiff’s separate property, the amount of the common property, and the amount of debts due by the plaintiff. He charged the community property, with the amount of the debts due by the plaintiff at the institution of the suit, the greater part of which remained due at the time of the rendition of the judgment; and he also allowed the plaintiff a credit against the community, of $350, for separate property of the plaintiff, sold during the marriage. The hire of a negro, purchased during the marriage, from the time of the purchase to the date of the decree, was counted as a part of the community. The rent of certain real estate in the town of Huntsville, amounting to a considerable sum, which real estate was the separate property of the plaintiff, was not taken into the account; probably because it was-supposed to have been consumed in family expenses. One-half of the value of the community property, after deducting the amount of the debts, and the sum of $350, for separate property of the plaintiff sold during the marriage, was decreed to the defendant in the court below; and the judgment gave her a lien upon all the property of the plaintiff, to secure her against outstanding debts.

We cannot perceive that the division of property, established by the decree, was not right and just, under all the circumstances of the case. The judgment of the court below is therefore affirmed.

Judgment affirmed.