
    FARMERS’ NAT. BANK OF CENTER v. HILL et al.
    (Court of Civil Appeals of Texas.
    Dec. 19, 1910.)
    Husband and Wife (§ 124) — Sepaeate Estate — What Constitutes.
    Plaintiff, a married woman, owned $300 in her separate right. She and her husband bought a home partly with the money and after-wards they mortgaged the home, and in litigation which ensued the husband deposited in court the amount due on the mortgage to avoid foreclosure. A large part of this deposit was furnished by plaintiff’s son, with the understanding that when the home should be sold the $700 advanced by him should be paid out of the proceeds to plaintiff for her separate use. Subsequently the home was sold, plaintiff joining in the deed on her husband’s promise to give her $1,000 out of the proceeds to reimburse her for the $300 of her money that went to its purchase, and the $700 promised her under the understanding with her son after' the sale. Of the $1,000 due plaintiff $900 was deposited in the bank by the husband in plaintiff’s name, the bank issuing a receipt and passbook to her and subsequently the husband deposited an additional $100, in her name. Held, that the $1,000 so deposited was plaintiff’s separate estate, and not subject to h.er husband’s debt to the bank.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 449-452; Dec. Dig. § 124.]
    Appeal from Shelby County Court; W. D. White, Judge.
    Action by Mrs. M. E., 1-Iill and another against the Farmers’ National Bank of Center. From a judgment for plaintiff. Mrs. M. E. 1-Iill, defendant appeals.
    Affirmed.
    Bryarly, Carter & Walker, for appellant. Davis & Dayis, for appellees.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   McMEANS, J.

Mrs. M. E. Hill, plaintiff, joined by her husband, C. M. Hill, sued the defendant bank for the recovery of $557.31, which she alleged belonged to her. in her separate right, and which sum she alleged had been appropriated by the bank in the payment of a debt for a like amount due it by her husband, C. M. 1-Iill, while holding the money on deposit. The defendant denied that the money was the separate property of Mrs. Hill, and claimed that the same was community property of C. M. Hill and his wife, Mrs. M. E. Hill, and as such subject to the payment of the debts of the husband. The defendant further pleaded that the deposit was made by the husband in the wife’s name for the purpose of defrauding his creditors. A trial before the court without a jury resulted in a judgment for the plaintiff M. E. Hill, and the defendant has appealed.

The facts, out of which this litigation grew, as shown by the record, may be briefly stated as follows: About the year 1882 Mrs. M. E. 1-Iill was the owner of $300 in her separate right. Half of this sum was given tc her by her mother in the way of a note which her husband had executed to her mother for borrowed money, and the other half was the proceeds of the sale of a cow which had been given to her by her uncle, and of the increase of the cow, and erf the proceeds of the sale of chickens and eggs. The testimony, without here setting it out, justifies the conclusion that the increase of the cow and the proceeds of sale of the chickens and eggs were her separate property, having been given to her by her husband at a time when it is shown he was solvent. In 1882 Mr. and Mrs. Hill moved to Austin and bought a home on Guadalupe street, and the separate property of Mrs. Hill before mentioned en-. tered into its purchase. Subsequently they created a valid mortgage lien on this property, and litigation in regard thereto after-wards ensued in which it was adjudged that the property was subject to the mortgage lien, but no foreclosure was ordered for the reason that C. M. Hill made tender and deposited in the registry of the court the amount due on the mortgage. The testimony discloses, and in deference to the holding of the trial court we conclude, that the money or a large part thereof so deposited was furnished by Tom Hill, a son of C. M. and M. E. Hill, who at said time advanced $700 with the statement and distinct understanding that use should be made of it in satisfying the mortgage lien, and that when the place on Guadalupe street should be sold the $700 so furnished by him should be paid out of the proceeds to his mother, the said M. E. Hill, for her separate use and benefit, and this was assented to by the said G. M. Hill. In 1902 the said C. M. Hill and wife removed from Austin to Center, and in 1908 O. M. Hill having an offer for the purchase of the Austin property requested his wife to join him in a conveyance thereof which she refused to do unless he would consent to give her $1,000 crut of the proceeds of the sale to reimburse her for the $300 of her property that went into its original purchase, and also the $700 which her son, Tom, had given her as before stated. To this he consented, the deed was duly executed and the property sold, the consideration being $2,500. G. M. Hill then deposited in defendant’s bank $900 of the $1,000 due his wife, in her name, the bank issuing a receipt to her therefor and furnishing her a passbook showing said sum had been placed to her credit, and afterwards G. M. Hill deposited an additional $100 also in her name, which made the $1,000 which it was agreed the wife should have. At the time of depositing the $900 to the credit of his wife, O. M. Hill deposited on his own account $543.24, which was also a part of the proceeds of the sale of the Austin property. Prior to this time he had borrowed from the defendant bank $500, giving Ms note for that sum, and securing the same by attaching thereto two certificates for five shares each of the capital stock of the Shelby County Abstract Company. At the time of making the deposit the note had been once renewed, and it was not at that time due. After-wards the certificates of stock above mentioned became worthless, and when the note fell due O. M. Hill, who in the meantime had checked out all or a greater part of the sum deposited by him, could not or did not pay it, and sometime thereafter the' bank appropriated a sufficient amount out of the sum deposited with it for, and belonging to, Mrs. Hill, to satisfy the note, and canceled and returned the note together with the certificates of stock to Mr. Hill.

We think that under the facts above, detailed, which are warranted by the evidence in the record, the money so deposited in the bank to Mrs. Hill’s credit and in her name was her separate estate, and as such was not subject to the payment of the debt for which it was appropriated, and that therefore the court correctly rendered judgment in her favor for the amount so appropriated.

We have carefully considered all the assignments of error urged by the appellant, and have concluded that no reversible errors are pointed out in any of them and they are severally overruled.

The judgment is affirmed.

Affirmed.  