
    Love and Wife v. Robertson.
    The presumption that property purchased during the marriage is community property is very cogent, and must be repelled by clear and conclusive proof; but where it is established that the property was purchased with the separate money of one of the parties, it remains, as in case of property received in payment of a debt due one of the parties, (McIntyre v, Chappell. 4 Tex. R., 187,) the separate property of the party with whose money it was purchased. (Note 2.1
    Where the husband purchased a slave at the price of $S00, paying at the time $380 of his separate money, and afterwards paying $300 “with profits made during the marriage,” leaving $170 unpaid at the time of his death, which balance was given to the heir by the creditor: Held. That the husband lmd an interest distinct from the community in the value of the slave proportionate to that part of the price paid with his money; the widow having a community of interest in the slave and his hire since the death of the intestate proportionate to that part of his price not so paid; that the remainder of his price, due at the time of the dissolution of the marriage, remained a claim against the community; having been given to the heir by the holder, the half of it chargeable to the heir’s interest in the community was extinguished, and tho remaining half was chargeable to the widow’s interest in the community: Held, also, That, if found necessary to the proper distribution of the respective interests of the parties, a sale of the slave should, have been ordered.
    Appeal from Washington. This ease had its origin in the Probate Court of Washington county, in a controversy between the appellant, Mary Love, formerly Mary Robertson, widow of Jonathan Robertson, deceased, and his only child and heir, Felix F. Robertson, (a minor, represented by his guardian,) respecting the ownership of two negroes, Peter and Finn. The widow claimed that they were community property, and the heir that they were the separate property of liis father.
    The facts, as agreed by the parties, were, that the said Jonathan and Mary were married in Texas in the year 1837. The husband died in 1844, leaving an only child, “ who now claims the property” in right of his father. At the time of the marriage, there was owing to the husband, from the sale of his patrimony, $1,030, which he afterwards collected. With this money, in 1841, he purchased the negro Peter, at $700. The remaining $330 ho, at the same time, paid in the purchase of the negro Finn, which he then bought at the price of $800. Of this last-mentioned sum the remaining $170 was not then paid, but $300 of the amount was afterwards paid by him with the profits made during the marriage; $170, with ten per cent, interest thereon from October 1, 1841, remained unpaid at the time of Ills death, and was due to T. D. Robertson, who gave it to the heir. The negro Peter is worth $1,000, and Finn $800. Both were hired at various prices duriug the years 1845, 1846, 1817, and 1848. The Probate Court adjudged the negroes, with their hire, to the heir, thereby deciding in effect that they were the separate property of the deceased husband. "The District Court affirmed the judgment, and the widow and her present husband, David H. Love, who bad become party to the proceeding, appealed.
    
      B. Gillespie, for appellants.
    The statement of facts shows that these negroes were purchased during the marriage. They were returned as part of the estate. More than half of the price of the negro Finn was paid with the community property; by the judgment, all of the title of that negro is given to the heir. In Benj. & Slidel, 282, sec. 18, and 283, sec. 39, it is laid down that such purchases are community properly.
    
      A. Sneed and W. S. Oldham, for appellee.
    I. As to what is held to he ganancial property, see 1 White’s Recop. 01; Scott & Solomon v. Maynard, d vx., Dallam, 54S.
    That everything purchased during the marriage fell into the common stock of gains by the Spanish law, and, upon the death of either of the parties, was to be equally divided between the survivor and the heir, as decided in Scott & Solomon v. Maynard, will not be denied. But it is insisted that the rule does not apply to purchases made with the separate funds of either of the parties. But, unless it is manifested that the purchase was made with the separate funds of one of the parties, the presumption is that it was with the community funds, and that the rule is based upon that presumption.
    II. In an ordinary partnership, property purchased or acquired by the firm is partnership property; but to make it so, it must be with the funds of the firm. A purchase of property by one of the partners with his individual money, although that property may be employed in the business of the partnership, does not thereby become the property of the firm, unless by special agreement or necessary implication resulting from the character of the property and the manner in which it is used, but remains to him who purchased it. If the nature of the property and the manner of its use would necessarily make it partnership property, upon the dissolution of the partnership compensation for its value would be allowed to him who furnished it. These are elementary and familiar principles, based upon reason and common sense, and need no authority to support them.
    III. The law which declares that the property acquired by purchase during the marriage shall become the common property is equally clear and positive that that which each brings into the marriage shall remain his or her property. Tlie construction sought to be placed upon the Spanish law would render these two provisions totally irreconcilable and repugnant, and would result, in almost every case, in reducing the separate property of the parties into community effects.
    We conceive that the property brought into the marriage remains the separate property of the party to whom it originally belonged, regardless of the changes or conversions it may undergo there for the fancy or necessities of the parties, aud that the property acquired by purchase, and becoming a part of the community effects, is that which may be acquired by other than the separate funds of the husband or wife. (Duerest’s Heirs v. Bijean’s Estate, 4 La. Cond. R., 482.)
   WhbeleR, J.

The inquiry presented by the assignment of error is, did the title to the property purchased by tlie husband during the marriage with tlie money which he received from the sale of his patrimony vest in him as his separate property, or did it accrue to the community?

In the case of Scott & Solomon v. Maynard and Wife, (Dallam, 548,) in reference to authorities upon the laws of Spain cited in their opinion, the court say: “ From an examination of these authorities we are justified in concluding that, under the Spanish laws, property acquired during marriage by purchase, whether the acquisition be made in the joint name of husband and wife, or of either of them separately, must be considered as common property; and that if there be any exception to this general rule, it must be established by certain and positive evidence, or otherwise the presumption that the property is common will remain in all its force unimpaired.”

In the case of McIntyre v. Chappell, (4 Tex. R.) we quoted the language of the Supreme Court of Louisiana, (1 La. R., 522,) to the effect, that by the Spanish law everything purchased during the marriage fell into the common stock of gains, whether purchased with the money of tlie community or that of either husband or wife. But to this rule there were exceptions, (ib.) The rigor of the rule, it was said, is applicable only to purchases, and does not necessarily include things which may be received by either husband or wife in payment of money due to them in their separate and individual rights. (Ib.) Therefore, property conveyed to the husband in payment of a sum of money inherited by the wife was held to be the paraphernal property of the wife. (Ib.)

The language of the court in the case'last cited does seem to favor the supposition that, in the ease of a purchase, though with the separate property of either husband or wife, the property acquired became community property. But such, it seems, was not invariably tlie rule. In Ducrest’s Heirs v. Bijean’s Estate, (8 Mart. N. S., 192,) it was held that, by the laws of Spain, if the money which the wife brought into the

marriage, whether dotal or paraphernal, was employed in the acquisition of an immovable, (as slaves,) the property became hers. (Id., 197.) And in Borie, F. W. C., v. Borie, F. M. C., (5 La. R., 89,) the court said: “It is true that by the Spanish jurisprudence and laws property purchased by the husband with the money of the wife became hers.” In the case of Terrell v. Cutrer, (1 Rob. R., 367,) of an adjudged case in 17La. R., (to which we have not access,) the court say : “In that case we held that when tlie wife retains the administration of her paraphernal estate, and the title is taken in her name, either as a purchase with the funds which she administers without the assistance of her husband, or as a dation en payement made to her by a debtor of a separate and paraphernal claim, the property thus acquired remains paraphernal, and does not fall into the community of acquests et gains. We readily admit that the subject is not free from difficulties growing out of the very general dispositions of the law applicable to such cases. The wife’s right to sell or otherwise alienate, and to administer her parapher-nal property, is clear. Her right to reinvest the proceeds of her property thus disposed of would seem to be but a corollary from that principle.” (Id., 368, 369.) Again, in Smally v. Lawrence, (9 Rob. R., 214,) the court say: “The land was purchased during the existence of the community; and although tlie receipts or certificates are in the name of the wife, still tlie property as much belongs to the community as if it stood in the name of the husband, unless she can prove that the purchases were made with her own money, or the property given in payment of a debt owing to her in her own right.”

From these cases it seems clear that property purchased with the separate or individual money of either husband or wife does not necessarily belong to the community. From the language of tlie court in the case last cited, it is to be. inferred that, “if the wife can prove that the purchases were made with her own money, or the property given in payment of a debt owing to her in her own right,” the property, if an immovable, would not belong to the community.

Note 2. — Huston a. Curl, 8 T., 239; Rose a. Houston, 11 T., 324; Chapman a. Allen, 15 T., 278; Smith a.Strahan, 16 T.,314; Dunham «.Chatham, 21 T.,231; Story a. Marshall, 24 T.,306; Smith a. Strahan, 25 T., 103; Cooke a. Bromond. 27 T., 457; Smith v. Boquet, 27 T., 607; Hatehott v. Conner, 30 T., 104; Tucker V. Carr, 39 T., 102; Johnson a. Burford, 39 T., 342.

Accordingly, in McIntyre v. Chappell, we held that negroes received by the husband during the marriage, in discharge of a debt due him for property which he had sold previous to the marriage, were his separate property, it is difficult to perceive any real distinction between this case and that. In the case of a purchase made during the marriage, it will, in general, be more diüicult to prove the individual ownership of the money, from what source it was derived, and whose money was really employed in making the acquisition, than in the case of the mere exchange of one article for another. A greater burden of proof will devolve on the claimant. The presumption that property purchased during the marriage was community property would certainly be very cogent, and would require''to be repelled by olear and conclusive proof. But when it is established, as in this case, clearly and conclusively, that the property was purchased wilh the separate money of one of the parties, no reason is perceived why it should have a destination different from that of property received in payment of a debt due the party, or why it should not remain in' the one case as well as in the other, the separate property of the party with whose money it was purchased. Why should not the property purchased with the proceeds of the patrimony receive the same direction as property received in lien of those proceeds?

Whatever difficulties the question may present, “owing to the general dispositions of the law applicable to such cases,” in principle and reason there can be no difference in the cases and no difficulty in the question. Equity and justice require that the property in each case should have the same destination.

We are accordingly of opinion that the negroes purchased with the money which the husband received from the sale of his patrimony, to the extent of that money invested, did not belong to the community, but were his separate property; consequently, that the negro Peter was his separate property, and that he had an interest distinct from the community in tiie value of the negro Finn, proportionate to that part of the price paid with his money; the widow having a community of interest in the negro, and his hire since the death of the intestate, proportionate to that part of his price not so paid. The remainder of his price, due at the time of the dissolution of the marriage, remained a claim against the community; having been given to the heir by the holder, the half of it chargeable to the heir’s interest in the community was extinguished, and the remaining half is chargeable to the widow’s interest in the community.

We are of opinion, therefore, that the court erred in adjudging the negro Finn and his hire to the heir. The widow, as we have seen, had a community of interest in a part of his value and hire, which the court should have ascertained and adjudged to her, and, if found necessary to a proper distribution of the respective interests of the parties, should have directed a sale of the negro.

Wo are of opinion, therefore, that the judgment be reversed; and, as we have not the facts before us necessary to a final disposition of the case, it must he remanded for further proceedings.

Judgment reversed.  