
    Mary E. Braden et al. v. John E. Gose et al.
    (Case No. 4503.)
    1. Separate property op wipe—Community property.— The interest resulting from a loan of the wife’s money is not protected by statute as the separate property of the wife against liability for the husband’s debts.
    2. Same — Levy — Injunction.—To satisfy an execution against the husband, a levy was made on land conveyed to the wife during coverture in consideration of money paid, txvo-thirds of which was the separate property of the wife, and one-third was interest accumulated from a loan of her separate means. Held, (1) That an undivided interest of one-third of the land was community property, and subject to execution and sale to satisfy the debt of the husband. (2) It is not necessary to procure a partition of land owned by tenants in common in order to subject the interest of one or more of them to sale under execution. (3) The schedule of the wife’s separate estate having been filed for record, and which embraced the land, before the levy, a levy upon the entire tract to satisfy the husband’s debt afforded no ground for injunction.
    3. Agreed case.— See opinion commending the practice of presenting a cause for hearing as an agreed case.
    Appeal from Lamar. Tried below before the Hon. R. R. Gaines.
    The following presents the case as agreed upon by counsel:
    “ This suit was instituted on the 22d of June, 1880, in the district court of Lamar county, by Mary P. Braden, joined by her husband, S. Braden, against John A. Gose, sheriff of Lamar county., E. D. Scales, who resided in Lamar county, Texas, and one N. Van Beil, who resided in the city of New York, to enjoin the sale of sixty-eight acres of land situate in Lamar county, Texas, levied upon by the said John A. Gose, sheriff, on the 14th day of June, 1860, by virtue of an execution issued out of the county court of Lamar county, upon a judgment in favor of E. D. Scales, for the use of Van Beil, against the said S. Braden and one O. H. Hall, rendered on the 28th day of January, 1880. The plaintiffs claiming that the land was the separate property of the said Mary P. Braden, and purchased with her separate money on the 24th day of January, 1880, was not liable for the debts of her husband, S. Braden, and that a sale of the same under execution would cast a cloud upon her title. The injunction was granted as prayed for in the petition, by the Hon. R. R. Gaines, judge of the sixth judicial district.
    “It is agreed that the defendant Scales, for the use of Van Beil, had a valid judgment against the plaintiff S. Braden (the husband of plaintiff Man7 P. Braden) and O. H. Hall, rendered in the county court of Lamar county on the 28th day of January, 1880; that a valid execution issued on said judgment and was levied on the said <=ixty-eight acres of land on the 14th day of June, 1880, by John A. Gose, sheriff of Lamar county, and that the said sheriff had advertised to sell the land. It is agreed that the said land was purchased by the said Mary A. Braden on the 24th of January, A. D. 1880; that she paid $1,200 for said land, and the deed was made to her and purported to be in consideration of $1,200; that $800 of the consideration paid for said land was a gift to the said Mary P. Braden from her brother-in-law, J. L. Garrett, given to her after her marriage, but several years before the purchase of the land, as her separate means; that the balance of the consideration paid for said land was the accumulated interest on said $800, which had been loaned by said Mary P. Braden from year to year; that no other consideration went into the land except the original gift and the interest arising therefrom. It is agreed that the said Mary P. Braden filed, and had recorded in accordance with law in Lamar county, Texas, a schedule of her separate property, showing the said sixty-eight acres of land as her separate property; that said schedule Ttas on record at the time the execution was levied on the land, but not filed for record at date of judgment; bpt it is agreed that defendants had no judgment lien on the land. The date of the note on which defendants’ judgment was rendered is July 28, 1877. Upon the above state of facts this court held that one-third of the sixty-eight acres of land was community property of plaintiff Mary P. Braden and S. Braden, and liable for defendants’ execution, and dissolved the injunction.”
    (Signed by attorneys of record and approved by the presiding judge.)
    
      Dudley & McDonald, for appellants.
    I. Money acquired by the wife after marriage by gift from her relative is the separate property of the wife; and if the husband takes no control of the money thus acquired, and the wife puts the same at interest in her own name from year to year for several years, and collects the interest thereon, it being the intention of the husband that the interest arising from the money so acquired and loaned out by the wife should be and remain the separate property of the wife, the original gift, as well as the accumulated interest thereon, is the separate money of the wife, and property purchased therewith in the name of the wife belongs to the separate estate of the wife, and is not liable to the debts of the husband. Const. of Texas, art. XVI, sec. 15; Hall v. Hall, 52 Tex., 294; Story v. Marshall, 24 Tex., 305; Merrett v. Lyon, 3 Barb. (N. Y.), 110; George v. Ranson, 15 Cal., 323; Kraemer v. Kraemer, 52 Cal., 302; Hart v. Robertson, 21 Cal., 346; Ramsdell v. Fuller, 28 Cal., 37.
    
      II. Where the husband takes no control over the separate money of the wife, but permits the wife to lend the same for a series of years, and afterwards to invest the principal and interest in land and take a deed to the same in her own name and schedule the same as her separate property, the law will presume as between husband and wife and those not claiming as innocent purchasers, that the husband intended that the interest arising from the separate money of the wife or property purchased therewith should be the separate estate of the wife. Parker v. Nolan, 37 Tex., 85; Higgins v. Johnson, 20 Tex., 389; Story v. Marshall, 24 Tex., 305; Smith v. Boquet, 27 Tex., 507.
    III. If there was any interest in the land belonging to the community estate of Mary P. and S. Braden, it was a mere equity, and not such an interest as is subject to sale under execution. Hendricks v. Snediker, 30 Tex., 306; Daugherty v. Cox, 13 Tex., 212; Edwards and Elmer and Breem v. Norton, 5 Tex. Law Jour., 117; Freeman on Executions, secs. 187, 188; Perry on Trusts, secs. 132, 133.
    IY. The court should have perpetuated the injunction according to its own finding as to two-thirds of the land in controversy, and adjudged the cost against the defendants. R. S., art. 2874.
    Y. Injunction is the proper remedy for a married woman to prevent the sale of her separate property taken under execution for her husband’s debts. Whitman v. Willis, 51 Tex., 428; Baxter v. Dear, 24 Tex., 21; Stoddart v. McMahan, 35 Tex., 299; Freeman on Executions, secs. 438, 439.
    
      E. D. Scales and J. P. Graham, for appellees.
   Stayton, Associate Justice.

This action was brought by the appellants to enjoin the sale of sixty-eight acres of land which had been levied upon by the appellee, John A. Hose, as sheriff of Lamar county, to satisfy an execution in his hands in favor of E. D. Scales, for the use of. Van Beil, issued upon a judgment against Barge Bra-den, who is the husband of Mary P. Braden, who claimed the property in her own separate right.

The judgment in favor of Scales was rendered on the 28th day of January, 1880, upon a note executed on the 28th day of July, 1877.

The land in controversy was purchased and deed taken in the name of Mary P. Braden on the 24th day of January, 1880, and was paid for with $800 which a relative of hers had given to her after her marriage, and by $400, which was interest that had accrued upon the $800, the same having been loaned at interest from the time it was given to the wife.

The judgment against the husband had never been registered, so as to give a lien upon the property, and the land had been scheduled by Mary P. Braden as her separate property before the execution was levied, but not before the rendition of the judgment upon which the execution issued.

The cause was tried by the court without a jury, and judgment was rendered dismissing the bill, and adjudging costs against the appellants; the court finding that one-third of the property was ■community property, and subject to sale under the execution, and that the remaining two-thirds was the separate property of Mrs. Braden.

The first assignment of error raises the question as to whether or not the property was the separate property of Mrs. Braden.

It does not appear whether the money which was given to Mrs. Braden after her marriage was given to her before the adoption of the present constitution or not, and it therefore becomes unimportant to inquire whether, under section 14, art. XII of the former constitution, interest upon money, the separate property of the wife, could be protected as increase of the principal fund or not.

The present constitution provides that “ All property, both real and personal, of the wife, owned or claimed by her before marriage, and that acquired afterwards by gift, devise or descent, shall be her separate property,” etc. Constitution, sec. 15, art. XYI.

The statute in force in this state since the 13th of March, 1848, upon this subject is as follows: “ All property, both real and personal, of the wife, owned or claimed by her before marriage, and that acquired afterwards by gift, devise or descent, as also the increase of all lands or slaves thus acquired, shall be the separate property of the wife,” etc. Pasch. Dig., 4641.

The same provision is found in the Revised Statutes, except that the increase of slaves, they having been emancipated, is omitted. R. S., art. 2851.

If, under any construction, interest upon money could in a legal sense be called the increase of the principal fund, under the law in force it would not he protected, for it is only the increase of land, the separate property, which the law declares shall be a part of the separate estate of the wife, and this, by the settled rule of construction, would not include the increase of personal property; besides, the statute provides that all property acquired by either husband or wife during the marriage, except that which is acquired by gift, devise or descent, shall be deemed the common property of the husband and wife. Pasch. Dig., 4642; R. S., 2852.

The §400 accrued interest which went into the purchase of the land was not acquired by gift, devise or descent, but is singly an accumulation from that which was so acquired, and to which the character of the principal fund under the statute cannot attach.

In the case of Hall v. Hall, 52 Tex., it was held that the interest due on the note made to the wife by the husband was her separate property; but this was upon the ground that the husband’s contract made it so. The fact that Mrs. Braden included the land in the schedule of her separate property which she caused to be recorded, cannot make it her separate property, if it was not so in fact, for the only object of such registration is to give notice of what is separate property, and it cannot in any respect change the character of property.

To the extent that the interest on the money, the separate property of the wife, went to pay for the land, the same became community property, and was subject to sale under the execution against the husband. Claiborne v. Tanner, 18 Tex., 78; Zorn v. Tarver, 45 Tex., 520.

Two-thirds of the money paid for the land in controversy being the separate property of the wife, the land in that proportion was her separate estate; and the remaining one-third of the purchase money belonging to the community, the other third of the land was community property, and the court did not err in so holding. It did not rest upon the execution creditor to establish that the husband was insolvent, in order to entitle him to sell the interest of the community in the land in satisfaction of his debt; his debt accrued in 1877, and the husband, to the prejudice of a creditor, could not have given the community money which went to pay for the land to his wife. As no hen attached to'the land until the levy of the execution, the property then being registered as her separate property, she would not have been precluded from showing that her husband gave to her the $400 which was community property, if such was the fact, and that at the time of such gift the husband had left in his hands ample property subject to execution to pay all his debts. Such a state of facts would have protected the wife; but no such facts appear in the record; if they existed, it was incumbent upon the appellant to plead and prove them.

It is claimed that the court erred in dissolving the injunction, dismissing the cause and adjudging costs against the appellants.

Under the past decisions of this court, it must be held that there was no sufficient ground shown for injunction. Carlin v. Hudson, 12 Tex., 202; Whitman v. Willis, 51 Tex., 427; Zorn v. Tarver, .45 Tex., 519.

The only interest in the land levied upon was that of the husband. This would only have embraced his separate estate or a community estate in the land, and nothing more could have passed by a sale under the levy, and no irreparable injury to the wife or her separate estate could have resulted from the sale. The schedule of the wife’s separate estate having been recorded prior to a levy upon the land, and the same being embraced therein, no one purchasing at a sale under the execution could have claimed to be a purchaser without notice of the claim of the wife; and her .rights, in case a purchaser under the execution had attempted to get possession of the land, would have been as fully protected in an action at law as by the institution of the suit for injunction-; and besides, the judgment of the court, in effect, as between the parties to this suit, settles the rights and respective interests of the parties.

The interest of the community in the land was not such an uncertain interest as would not be subject to execution; one-third of the purchase money therefor having been paid with community funds, an undivided one-third of the land was community property and subject to sale; and it has never been held in this state that it was necessary to cause land, held by different persons in undivided but fixed parts, to be partitioned before the interest of one or more tenants in common therein could be subjected to sale under execution. There being no ground for injunction, it was not error in the court to adjudge all the costs against the appellants.

This cause comes before the court as an agreed case, exhibiting in narrow compass and in clear terms the points to be decided, and the briefs of counsel present in like manner the issues in the case and authorities relied upon, and we deem it proper in this cause to commend this method of presenting causes when practicable.

There being no error in the judgment of the court below, the same is affirmed.

Affirmed.

[Opinion delivered April 25, 1882.]  