Lawson v. Barre , 6 Tex. 217 ( 1851 )

HeMPHIDL, Ch. J.

The judgment in this case against the wife is clearly erroneous. The land upon which appellants lived was held by a lease for their joint benefit, and was consequently community property, and they may have had other community property, the corpus or profits of which might he subjected to the payment of this debt There is no allegation in the petition to the contrary. The negroes employed in cultivating the land are averred to bo the property of the wife, and the suit against the husband and wife jointly may have been brought on I lie supposition that the erection of the gin was as beneficial to the wife’s separate estate in the negroes as to the community property in the land, and that her separate property should satisfy at least a proportional share of the debt. Without entering into the question of the liabilities of the respective property of the husband or wife in proper cases, or what is separate and what community property as arising out of the proceeds of- the property of the husband or wife, it is sufficient for this case to state that there was not sufficient admissible evidence to show that the wife possessed any property in the negroes in her separate right.

The attempt to establish this fact by common rumor was properly overruled, and the fact that on one occasion she directed a merchant to charge some articles to her, having purchased them for the use of her negroes, was not sufficient proof. If it would have fixed her liability for the particular debt incurred, it would not reach this case. If it conduced to prove that site was the owner of negroes, yet it was no evidence of their number or that they were employed on the plantation of appellants, or that the husband did not hold the slaves or a portion of them in his own right.

The judgment as against"the wife, with directions that it be levied at the election of the plaintiff out of her separate property, is erroneous, and it is therefore ordered, adjudged, and decreed that the judgment be reversed. And this court proceeding to enter such judgment as should have been rendered below, it is ordered", adjudged, and decreed that the petition be dismissed as to the defendant Ann H. Lawson, and that the plaintiff recover of the defendant John II. Lawson, the sum of two hundred dollars and costs of suit, for which execution may issue.

Ordered accordingly.