Story v. Marshall , 24 Tex. 305 ( 1859 )

Wheeler, C. J.

It is not questioned that, under our law, the husband may make a gift or grant of property to his wife, by conveyance to her, directly, without the intervention of trustees. It has been so held, in repeated decisions. (14 Texas Rep. 443; 16 Id. 286; Id. 314; 7 Id. 576.) And where property was purchased by the husband, with the funds of the community, and the deed taken in the name of the wife, it was held, that the presumption that it remained community property, might be rebutted by proof of the declarations of the husband, made at the time, showing that he intended the property to become the separate estate of the wife. (Higgins v. Johnson’s Heirs, 20 Texas Rep. 389.)

In the absence of any evidence of intention, outside of the deed, it must be taken as evidencing the intention which, upon its face, it imports; that is, to convey to the wife the estate of the husband, in the property. It must have been intended to have some operation upon the estate of the grantor; and that must he taken to have been, to change the estate from community, into separate property of the wife, in the absence of evidence of any other or different purpose, in the making of the conveyance. To deny it that effect, would be to render the deed wholly inoperative and void. The grantor could have made an effectual conveyance to a stranger, of the whole estate; and it is not perceived that there is any legal impediment to his conveying to his wife his interest, thereby investing her with the whole estate. The evidence warrants the conclusion, that the deed was without consideration, and therefore, a donation or gift. As such, it must have been upheld, as between the parties, had it been a conveyance of his separate property; and we think it equally operative as a donation of his community interest in the property. In Higgins v. Johnson, 20 Tex. Rep. 396, it was said—the husband having the power of making donations, even to strangers, has certainly authority to transfer the whole interest in an article of community, to the wife.

There can be, in this case, no presumption, as in the case of a purchase from a stranger in the name of the wife, that funds of the community were employed in making the purchase, and therefore it is community property. But the conveyance being of community property of the parties between whom the conveyance is made, primd facie, the presumption must be that it was intended to change its character from community to the separate property of the wife. The subsequent sale of the property, by the husband, cannot be deemed sufficient to rebut this presumption. (Smith v. Strahan, 16 Texas Rep. 314.) The judgment was in entire accordance with the view we entertain of the law, (O. & W. Dig., Art. 347,) and it is affirmed.

Judgment affirmed.