de Garca v. Galvan , 55 Tex. 53 ( 1881 )

Quinan, J. Com. App.

1. Whether the conveyance from Eamirez to his wife was made bona fide or not, was not properly a question in the ease. If was a conveyance which, under the law, he could make, was upon a good consideration, and unquestionably valid as between the parties to it. It could be questioned only by subsequent ' purchasers from Ramon without notice, or by the existing creditors. It is made in 1868, conveys property by the brand, and that was recorded on the same day. Whether Galvan was a creditor of Ramirez or not at the date of the issuance of his attachment, it is very certain that no proof was offered to show that he was a creditor of Ramirez at the execution of the deed, and he had therefore no right to question its validity. He could not be said to have been hindered or delayed by it in the collection of a debt of the existence of which he offered no proof. The charge of the judge upon this point was without evidence to warrant it, and therefore erroneous. Reynolds v. Lansford, 16 Tex., 287; Earle v. Thomas, 14 Tex., 583; Hampton v. Dean, 4 Tex., 455; Hutchins v. Masterson, 46 Tex., 551.

2. There was no proof introduced to show that the stock levied on was the increase of the stock conveyed by Ramon to his wife, The charge, therefore, in respect to the increase of the stock was wholly irrelevant, and could only tend to mislead the jury. Whether, if it were proven that such was the fact, that it was the increase, that the property would then become community property, we need not decide. From 1810 to 1816 the constitution recognized the right of the wife to the increase of her separate property. And during that period, at least, the increase of the stock which had been conveyed to Francisco, and had become her separate property, would be also her separate property. And we are unable to see why Ramon could not also by his deed of this specific stock and its future increase to his wife, make the increase her property. It is not clear to us how such a conveyance would be in derogation of the marital rights law. And it could work no injustice to creditors and others who had notice of it.

3. It was enor to charge in effect that the brand of the claimant recorded was not proof of ownership. It is the very purpose of the law in requiring the registration that it shall be notice and prima, facie proof of ownership.

4. The declarations of Ramon as to his intention in making the deed were wholly inadmissible against his wife. They were incompetent proof, and entitled to no weight. That the declarations of a grantor made after the execution of his deed should be received to destroy the deed he had made, is against reason and against law, and it is especially so in the case of a husband denouncing the title of his wife.

As said by Chief Justice Hemphill in McKay v. Treadwell, 8 Tex., 176, such declarations should not only be rejected, but the vigilance of the court should be aroused, and measures taken to shield her from danger in that quarter.

The statements of Ramon were not objected to on the trial, but that omission did not make them proof. “The admission of such evidence without objection does not add weight to it, if intrinsically it had none, and should have been excluded upon objection. Evidence does not have weight because it is admitted, but it is admitted because it deserves to have weight.” Sharp v. Baker, 22 Tex., 315.

In Gee v. Scott, 48 Tex., 510, it was held that the husband could not be a witness for or against the wife on the ground of public policy. This rule applies with double force to his mere declarations.

We are , of opinion that a new trial should have been granted; the verdict was against the testimony.

The claimant made out a prima facie case. The gift of the property to her of the stock on the Gonzalena ranch, where it was managed as hers, the recordation of her brand, the seizure of the property on the Gonzalena ranch, with her brand upon the animals,—proof of these facts were sufficient to warrant a recovery. Galvan did not establish by any proof his right as a creditor of Ramirez to question the validity of her title.

5. The appellee insists that the certified copy of the deed of gift from Ramirez to his wife was improperly admitted in evidence, there being no affidavit filed of the loss of the original, or the inability of the appellant to procure it. It is true the statement of facts shows that objection was made to the introduction of the copy, but it is not stated upon what ground. Where objection is made to the admissibility of evidence, the objector must specify the ground of its inadmissibility. The preliminary proof necessary to the admission of the copy was addressed to the judge. We must presume that the proof was made which authorized its admission. An objection which does not state the reasons for the rejection of the testimony, if, under any contingency, the evidence offered would be properly admitted, will not be considered on appeal. Rule 57, Sayles’ Practice, 593; Stiles v. Giddens, 21 Tex., 783; Trigg v. Moore, 10 Tex., 200.

For the errors indicated, the judgment ought to be reversed and cause remanded.

Reversed and remanded."