
    PALMER PRESSED BRICK WORKS v. STEVENSON et al.
    (No. 983.)
    (Court of Civil Appeals of Texas. Amarillo.
    May 3, 1916.)
    1. Fraudulent Conveyances <§=>52(1) — Homestead.
    Part of the homestead property, not previously abandoned as such, may, without consideration, be conveyed to the wife, becoming her separate property, free from claims of the husband’s creditors.
    [Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 118, 122-124; Dec. Dig. <g=»52(l).)
    2. Husband and Wiee <®^150 — Improving Separate Property with Community Funds.
    The wife’s land cannot be sold for the husband’s debts, because of improvements made thereon with community funds when he was insolvent, unless made to her knowledge with intent to defraud his creditors, though the creditors may have some remedy as to the improvements.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 575-5S1; Dee. Dig. 150.)
    Appeal from District Court, Dallas County ; E. B. Muse, Judge.
    Action by the Palmer Pressed Brick Works against F. L. Stevenson and others. From an adverse judgment, plaintiff appeals.
    Affirmed.
    C. M. Smithdeal, of Dallas, for appellant. W. N. Coombes, of Dallas, for appellees.
   HENDRICKS, J.

In 1894 F. L. Stevenson, a married man, acquired lot No. 12, in block No. 9, in Fairview addition, 70x175 feet, fronting on Simpson street, in the city of Dallas. In 1895 he built an 11-room house on said lot, used thereafter as a boarding house, and conducted by his wife, F. K. Stevenson. 'Previous to the construction of the house, Stevenson, the husband, built a bam on the northeast corner of said lot, and in the rear of said property, and in October, 1913, he conveyed 45x45 feet out of said lot, on which the barn was situated, to his wife, F. K. Stevenson. Prior to this conveyance to the wife, the barn was not used, except for purposes of storage; the horse owned by the husband having been sold several years previous thereto.

In 1911 the husband, F. L. Stevenson, became indebted to the appellant, Palmer Pressed Brick Works, for the debt sued upon in this case, and which was thereafter merged into judgment, and upon which an attachment was issued and levied upon the part of the lot conveyed to the wife, upon which the barn was situated. The wife was made a party to this suit before the rendition of final judgment, and upon the trial, as to the ownership of the property, the court denied appellant a foreclosure of the attachment lien. Another part of the lot — the northwest corner of same — seems to have been sold to other parties at a different time, and the rear of the property, including the barn, was at some time fenced separately from the main house; but the rear 'of the lot seems to have been used, at times for storing timber, and as a place for garbage, deposited in a can, hauled off by the city. The wife, F. K. Stevenson, reconstructed the barn, at a cost of about $200, into a tenant house; the husband testifying that at times he used one room of the same for an office, having his desk and certain papers therein, in his business as a contractor and carpenter.

So far as this record shows, the barn, on the rear of the homestead lot, whether used or not for the accommodation of a horse at the time of the conveyance by the' husband, constituted a part of the homestead; it was on the homestead lot. The husband had a right to deed any part of it to the wife; previous to the date of the conveyance, we do not find sufficient evidence to disclose segregation and abandonment of that' part of the homestead upon which the barn was situated to divest it of its homestead character. When the wife received the deed, it was her separate property, irrespective of a consideration. If she reconstructed the barn into a tenant house, with her separate property, the creditors could not reach any part of it.

It is claimed by the appellees that the money used in reconstruction constituted her separate property. It is shown that, several years before the conveyance to her of the particular part of her lot, she received, in different installments at different times, an aggregate sum from her father’s estate of about $1,000. This sum she mingled with the earnings, claimed as her own, arising, from the boarding house conducted by her. It is not definite what the $200 represented. In any event, the strongest case that could be made in favor of the creditor is a claim that the community funds, or a part of same, mingled with separate funds (on account of the confusion, making it community), entered into improvements upon her separate property, and constituted an asset for the benefit of a creditor. The record shows that at the time of the conveyance the husband was insolvent. If these funds constituted community property, it is true that when the husband is in such condition he could not give the same to the wife. Maddox v. Summerlin, 92 Tex. 483, 49 S. W. 1033, 50 S. W. 567. Speer, in his law on Marital Rights, § 335, p. 419, in regard to improvements says:

“The title to the property still remains in the wife, subject to this equity in favor of the community; but it is not such an equity or right in favor of the husband or the community as that creditors of the husband may seize and sell it upon execution”

—citing Schwartzman v. Cabell, 49 S. W. 113, as deciding the point, with numerous other cases also cited as bearing upon the question; also see Collins v. Bryan, 40 Tex. Civ. App. 89, 88 S. W. 432, Kane v. Ammerman, 148 S. W. 817, and Hendricks v. Snediker, 30 Tex. 297. Justice Brown said, in tke case of Maddox v. Summerlin, supra, 92 Tex. 487, 49 S. W. 1034:

“We conclude that the land of the wife cannot be sold at the suit of the creditor, unless the facts shall show that the husband made the improvements with his own or the community funds with intent to defraud his creditors, and that the wife, knowing of such intent, participated in the fraud.”

The wife testified:

“When Mr. Stevenson made me this deed, I knew the company (a contract company, in which the husband was interested) owed some debts. I did not know whether Mr. Stevenson did or not.”

It is not shown whether the Mullican Contract Company, in which Mr. Stevenson was interested, was a partnership or a corporation. Whether or not an attachment or execution would subject the particular interest in the property to the debt of the creditor, we think the record is such that the trial court could have concluded that the facts did not show that the community funds (if regarded as such) were placed upon the wife’s separate property, with a knowledge of the wife, with intention to defraud the husband’s creditors.

On the whole, we think the judgment should be affirmed; and it is so ordered. 
      tS=jFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     