63 Tex. 388 | Tex. | 1885
From the record it appears that this suit was instituted February 10, 1881, and that Overton Young, the husband of appellant, died in September, 1877. It also appears that appellant has had the continuous adverse possession of the mules and horses mentioned in the findings of- the court, claiming the same as her separate property, before and ever since the death of her husband, and that the appellees were informed of her claim as early as January, 1877. This sufficiently shows that the finding of the court to the effect that appellant did not convert that property to her own use until four years had elapsed after the death of Overton Young is without any foundation in the evidence. If the property was converted by her at all, it was immediately upon the death of her husband, in September, 1877. So far as the appellant is concerned, conceding that the mules and horses were community property, then by reason of her adverse possession and open asser
There can be no doubt but that in a proper case the district court had the power to decree “the profits, proceeds and revenues” of the land to the wife for the support of herself and for the nurture and education of her children, provided the court deemed them necessary for that purpose. R. S., art. 2856.
There is nothing in the transcript concerning the suit or proceedings that resulted in the decree of 1868, except the substance of that decree, from which it appears that the land was the separate property of the appellant. And the court decreed that all the profits, proceeds and revenues of the land be set apart for the sole and separate use of appellant, for the support of herself and the education and maintenance of her children. As there is nothing to the contrary shown by the record, the presumption will be indulged that the proceedings were regular and that the decree was correctly rendered. It is shown by the evidence that the mules, which the court below found had been converted by appellant, were all purchased and paid for out of the crops raised on the plantation; also that they were necessary in cultivating the same, so as to make a support for appellant and her children.
We are unable to perceive any valid reason why the property thus acquired should not be considered the separate property of the appellant.
Our conclusion is that the court erred as indicated, and that the judgment ought to be reversed, and the supreme court now here render such judgment as ought to have been rendered by the court below, viz.: That the appellees take nothing by their suit, but that the appellant go hence, etc., and recover her costs.
Reversed and rendered.
[Opinion adopted February 24, 1885.]
