Zorn v. Tarver , 1 Tex. L. R. 487 ( 1882 )

Delany, J.

Opinion by The first assignment of error relates to to the admission of the testimony of E. R.. Tarver, the husband. As the husband was only a nominal party, the real object of the suit being to protect the separate property of the wife, the admission of his testimony might, perhaps, be held erroneous under the ruling in Gee v. Scott, 48 Texas, 510. But it is unnecessary to express a positive opinion, as the testimony of Tarver was Avholly immaterial, and could have no influence upon the decision of the cause.

This is the only objection to testimony that is contained in the record.

This case was before the Supreme Court on a former appeal (45 Texas, 519.) On that appeal, as on the present, there were two opposite vieAvs of the case taken by the parties.

The appellant insisted that the purchase of the land by Miss Young at the former execution sale was not a real purchase for her OAvn benefit, but that it was, in fact, a loan of so much money to E. R. Tarver; that the land Avas purchased by Miss Young and con-A'eyed to Mrs. Tarver to -protect it from Tarver’s creditors, Miss Young retaining a lien upon it to secure the money which she had advanced.

On the other hand, the appellees maintained that the purchase by Miss Young was a real purchase, and that her subsequent conveyanee to Mrs. Tarver was a gift to her cousin, the land being charged, in the hands of the donee, with the amount she had paid for it.

In commenting upon the case, Mr. Justice Moore, after remarking that it was unnecessary to decide which of these lines was correct, proceeds as follows:

“ Conceding that Miss Young acquired by her purchase an absolute and perfect title, coupled in no way with any condition or trust whatever, yet, as 'the conveyance from her to Mrs. Tarver purports to be on an onerous consideration, in the absence of clear and satisfactory proof that the land was purchased with Mrs. Tarver’s separate funds,.and that the conveyance, though in form a sale, was in fact a gift, we must regard it as belonging to the community estate of appellees.”

These remarks of the court apply to the case as it appears upon the face of the conveyance. The learned judge then cites, from the testimony, a statement to the effect that Miss Young had two objects in view in purchasing the land; first, to make asecure investment of her money, and, second, to benefit her cousin, Julia Tarver; that the land was worth far more than the money consideration recited in the deed; that the consideration of the conveyance from Miss Young to Mrs. Tarver was partly a money consideration, partly love and affection, and that Miss Young had been repaid, with interest, all that she had paid out for the land.

Here it will be observed that, although the testimony shows that Miss Young had been repaid, it does not show from what source the money came, whether it was separate or community funds.

The opinion closes with these words: “How, as it was not shown that this money consideration was paid with the separate funds of Mrs. Tarver, or, indeed, that she had any separate means from which it could have been paid, it can not be said that, as to so much of the land conveyed in consideration of the repayment to Miss Young of the amount which it cost her, the presumption of community property is rebutted.

“ Granting that so much of the land as is in excess in value of this sum of twelve hundred and fifty dollars was a gift to Mrs. Tarver, and therefore her separate estate, still, so far as anything is shown to the contrary, an undivided interest in part of the land was community property, and as such, subject to appellant’s execution.”

Upon the present appeal the same questions are before us for decision.

The part that is whether the purchase by Miss Young was a real purchase or a sham, was determined by the judgment of the court below against appellant, and we find nothing in the record to satisfy us that the determination was wrong.

Upon the last trial it was proven that after the conveyance by Miss Young to Mrs. Tarver, a part of the land was sold, and from the proceeds of the sale the amount recited in the bond as the consideration, together with the interest, was repaid to her.

The court below, in passing upon the case, must have considered this proof as completely rebutting the presumption that the land was bought with the community property of the husband and wife.

If Miss Young, instead of conveying the whole of the land to her cousin, and retaining a lien upon it to secure to herself a part of its-value, had herself sold a part of the land, and conveyed the remainder to her cousin, she would have accomplished directly what the proof shows was indirectly done.

But appellant insists that as the bond from Miss Young to Mrs. Tarver showed “ that the property was acquired by apparent onerous title, the judgment lien attached thereto, and in the absence of proof that the creditor had knowledge that it was the wife’s separate property,” his lien gave him the superior claim; and he refers to the case of Wallace v. Campbell, 54 Texas, 87.

But if we admit the correctness of appellant’s proposition, still E. R. Tarver’s interest in the land was nothing more than an apparent equity. Miss Young held the title, and she held it for herself and Mrs. Tarver. A purchaser from E. R. Tarver would have been put upon inquiry as to the nature of Miss Young’s interest in the land, and have been informed of the real character of the title. This would have been fatal to his claim as a purchaser. Zorn’s-judgment lien cannot place him in any better position.

Our opinion is that the judgment should be affirmed.

Report of Commissioners of Appeal examined, their opinion adopted and judgment affirmed.

Gould, C. J.