Rose v. Houston , 11 Tex. 324 ( 1854 )

Wheeler, J.

The question to be determined, is, whether the note, given for the purchase money of the wife’s separate property, was also the separate property of the wife. And this question, it is conceived, has been settled by the repeated decisions of this Court. It has been decided, not only, that property received in exchange for the separate property of one of the parties to the nuptial contract, remains separate property ; but that property purchased with money, which was obtained upon the sale of the separate property of either husband or wife, also remains separate property. (Love v. Robinson, 7 Tex. R. 6 ; McIntyre v. Chappell, 4 Id.) The consequence is, that to maintain the character of separate property, it is not necessary that the property of either husband or wife should be preserved in specie, or in kind. It may undergo mutations and changes, and still remain separate property : and so long as it can be clearly and indisputably traced and identified, its distinctive character will remain.

If the averments of the petition of the intervenor, be true— as for the purpose of considering their legal sufficiency on demurrer, they are to be taken to be—the note, sued on, was the separate property of the party intervening; and this was known to the plaintiff when he obtained it. Such knowledge, brought home to the plaintiff, by proof, would enable her to assert her title as against him. It would, perhaps, be otherwise, if he was a bona fide purchaser or indorsee without notice of the wife’s ownership. But here his knowledge of her rights is expressly charged and averred. The' averments of the petition appear to us sufficient to enable the party intervening to maintain her action; and we are of opinion that the Court erred in sustaining the demurrer.

The judgment is therefore reversed and the cause remanded.

Reversed and remanded.