Johnson v. Burford , 39 Tex. 242 ( 1873 )

Walker, J.

Thos. R. Burford brought this action to recover possession of sixty acres of land which the appellants claim by descent from their mother, Rachel Johnson, who was the wife of Benjamin Johnson, Sr.

Mrs. Johnson died on the 13th of August, 1856, thirteen days before the passage of the act authorizing the surviving partner to file an inventory and sell and administer community property.

The rights of the appellants are not affected by this act if the land in controversy is to be regarded as community property, which is a contested point in-this case. (See Magee & Gogle v. Rice et al., May 6, 1872, unpublished.)

The appellants claim also to be the assignees of their co-heirs.

This land was purchased from Sarah McG-affey, the sister of Mrs. Johnson, to whom the deed was made on the 25th day of November, 1853.

The plaintiff in the court below offered in evidence this deed in order to deraign title from a common source. This was improper, unless it be clearly shown that the land was community property, belonging to Benjamin and Rachel Johnson.

If this be not shown, there is no privity of title between the parties; nor does the appellee claim under the deed to Rachel Johnson, but through a deed from Benjamin Johnson to John Stamps.

John Stamps having died, in the settlement of his estate the land was sold to one Ewing, from whom Burford purchased.

The general rule of our law is, that where property is purchased during the connubial partnership, though the title be taken to one of the partners, it is nevertheless •community property.

■ But the court say, in Higgins v. Johnson’s Heirs, 20 Texas, 389: “Where land is purchased with the funds -of the community, and the deed is taken in the name of the wife, the presumption is that the land remains -community property; but such presumption may be rebutted by proof that the husband declared at the time that his intention in taking the deed in his wife’s name was to make .the land her separate property. In such cases the transaction operates as a gift from the husband to the wife.” Dunham v. Chatham, 21 Texas, 244; Story v. Marshall, 24 Texas, 307, lay down the same doctrine.

Though the wife, by her superior management, economy and ■ thrift, may have raised the money to pay for this land; it would nevertheless be community property unless it be shown that it was the intention of the husband to give the wife the proceeds of her own earnings, to be invested in this land, and then the title taken to her would operate as a gift.

For the reasons given, this case must be reversed and the cause remanded.

Reversed and remanded.