Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1893-06-28
CIVIL COURT OF APPEALS.



No, 4s G.- i rptlrtou ct ai,. APPELLANT.
finPm the district court II Tarrant e Sun
OPINION.
rus suit Involves the title 10 two tracts
OF land situated m wichim c,untT An.
r rInia1' ,i lain 4 he heirs Of NJ. y IN.
w. Wy; iurintoh. Appellcts claim under an
execution sale made III ihp wear Isl iii1rr
" ]lps ,rIs,n, rendered IN ISL against ".
on In lNSj as The property az " II i'nrin'
~, VINO was continuously lnsolyent froai
ahont the date " said Judgment Annei,
i ,nnis brought this suit October Z. iSSi.
inr HtS e ig pea, Or uespgss 10 Try Iue, pray
1nppehees, 10y answer filed November ..
ISL, lnterposcd the plen Of NOT guilty
sia u,u, I'LL OF limitation and by u cross &C.
t lon ahesed that the claim OF appellants
cast cloud upon their ~, nrayin,
,i,at be removed. The controlling uues.
llun IN the case arises npou the eHeef
n nn1sf the facts developed. q the deeds
conveying the property 10 Nj. NJ pnrintnn
whose husband was az the limo moi univ
ii,nrolNent but Indebted TO the plaintin In
W. Juag9hchl under which the lands were,
utetwarlis levied ON aud sold An Of Tho
oonNcyances except one rpcltpd thnt fbe
Cn.aluefAlon was paid by NJ NJ Inrintpn
uut OF her separate property and that ono
aa r'}i'el nut The consideration YVES paid
hni secured 10 be paid hy NJ NJ. irrliitoe
on OF her separate property rs follows.
SSSsS4a paid IN cash aud the balance OF
500 In thirty DAYS All the deeds In terms
y,on'eyed The lands TO NJ. NJ Purlnton MS
hrf separate property; aud they worn All
nude with the consent Of the husband hy
other parties. ~
The court found that the evidence failed
70 70, SATISFACTORILY show either that NJ NJ
fufintoh's separate funds were usal 10 any
extent In purchasing the lands IN contra
Neisy' or II 50, the extent 10 which they
We're used. but that she lad some sepatnt,
pluueFN peiqr" the lnnds In controversy
were purchased, which underwent m.
lueht AMI numerous mutations before the
purchases IN question were tnndp aud thai
ne same had not heeu with any degree ~
mess Traced into the lands IN cou.
uoverSN' This conclusion We find 10 he
sustained by the record, The court there.
fore held that the property was community
property when levied on and. as such, that
u was subject to levy aud sale; holding
that the burden VI showing that the prop.
erty was the separate property of Mrs.
Iurlnton rested upon ,nusp claiming nm.
der her. Since the decision IN this ease.
Cutchen VI, Purntoh 81 Texas Gnl. In
constituting deed Identical with those
Ia question. has decided that. whrr" The
deed Is taken IN the name Of thp wife hy
the consent n her husband rrrltiur that
the consideration is paid ly her out " her
separate property ana conveying the land
to her as her separate property n vests
the title IN The wife as her separate es.
tate and Imposes tie burden NJ showing
10 the contrary upon those attacking the
conveyance, The court. however, found In
this ease that II mistaken In the cOurlu
sion, that tile burden rested upon appel
lniits, the evidence was sufficient to over
come the nrmn fuce case innde by the
recltAls In the deed mud 10 establish that B
the lnpd was community property o. W, W, !
and VI, NJ lnrlnlon. After a careful cOn- ,
II mf nf all
the several conclusions Of law aud fact |
found In the record, we feel constrained !
20 hold that these findings must hare been |
Influenced by attaching undue weight 10 |
the failure Of appellants To distinctly trace |
any separate property Of Mrs puriuton /
INTO the land IN question without astrlb I
lug to the deeds the prohative force NJ con |
Neynnrcs IN terms creating separate rs |
tate IN the wife rather than an es-
tate Of husband and wife Untl set aside |
for fraud these deeds made the lands the |
separate estate q the wife, at least So CIR |
as the legal title was concerned. The |
creditor may Of course follow tile comnlu' |
nifty as well as other property Of IN In |
solvent aud fraudulent debtor subject II |
10 the payment " his debt, aud the doe. |
trlne " constructive trusts may be APP |
piled to deed which IN terms conveys !
tile legal title To the wife as her separate I
prupcriy as we'll as 10 other deeds We 1
Judgment unon the disclaimer OF VI VI. /
purint0n, He certainly could moi divest |
the separate estate ~ his wife, rs shawn 1
by deeds made with his consent 10 her |
as her separate property. bv nuy suhsr. 1
qlent deed on disclaimer OF his II the I
deeds we're made 10 defraud creditors they
were subject 10 attack by levy or othcr
proper method on the part of creditors
but the ll'shnnd could no more dlvrst title
by any voluntary act Of his than II he had
made these deeds himself ny q gift 10 hls
wife Tile view taken by the court below
d the validity and lnyaldlty Of the lev
les aud sale we approve. We have cont
rlude that as the case was tried upon a
theory which has since the trial been dv,
rided by the supreme court 10 be- CHROME.
pus. that In Justice to all parties the iu1g
ment should be reversed and tue cause re-
handed STEPHENS,
Associate Justice.