S. and J. H. French et al. v. H. D. Strumberg et al., 52 Tex. 92

Bonner, Associate Justice .—This is an action of trespass to try title, brought by the appellants against the appellees, in the District Court of Bexar county, to recover a large number of lots in the city of San Antonio, near the Alamo. One of the original plaintiffs, Charles Webb, dismissed the cause as to himself, leaving the same to be prosecuted by the remaining plaintiffs, Sarah French, Flora K. Adams, and Olive Washington, joined by their husbands.

The plaintiffs claimed the lots in controversy by inheritance from their deceased mother, Olive Ann Jones, first, as her separate property; second, as the community property of herself and her husband, Enoch Jones, also deceased, and who was the father of two of the plaintiffs. The property was sold, after the death of Olive Ann Jones, by her surviving husband, Enoch Jones, to J. J. Giddings, for a valuable consideration, by warranty deed, and by Giddings sold to defendants and those under whom they claim.

The defendants demurred, pleaded not guilty, the statutes of limitations, improvements in good faith, and advancements by Enoch Jones to the plaintiff's, and releases by them to him and to his estate. The cause was tried by the court, a jury having been waived, • and judgment rendered for the defendants. The first error assigned is, that “ the court erred in not permitting the plaintiffs to read in evidence the second deposition of the witness Griffith H.

Jones.” In our opinion, this alleged error is not well taken, for the reason that the additional testimony therein contained was not responsive to the interrogatory; that the witness, in the deposition which was read, stated distinctly, as sought to be proven by the plaintiffs, that the land was claimed by Mrs. Olive Ann Jones, and hence the testimony was immaterial; and for the reason that so much of the answer as was based -upon the inference of the witness was improper. The second alleged error is, that “the court erred in allowing the instrument signed by Mrs.

Olive Ann Washington and her husband to be read in evidence over the objections of the plaintiffs.” The instrument referred to was “an acknowledgment by Mrs.

Washington, joined by her husband, dated August 24, 1860, setting forth a donation and transfer from her father, Enoch Jones, to her, of land valued at $5,760.75, as an advance to her as an heir of his estate, and granting in consideration thereof‘this acquittance and release to the estate of her said father’ to the extent of said $5,760.75.” The appellants objected to its introduction because it was irrelevant, and because it was not acknowledged in accordance with law by Mrs.

Washington, she being a married woman, and because it did not appear that she had been examiued privily and apart from her husband, as required by law. In view of the fact that Enoch Jones had sold by warranty deed the property claimed by Mrs.

Washington as belonging to her mother, we think that the testimony was relevant as tending to prove that this was an advancement to her, and for which she could equitably be called to account, and that there was no error in its introduction, particularly as the case was submitted to the court without the intervention of a jury, and there was other evidence showing, prima fade at least, that she had received other property in satisfaction of her interest in her mother’s estate. (Herndon v. Casiano, 7 Tex., 322; Gould v. West, 32 Tex., 338; Irion v.

Mills, 41 Tex., 315.) In response to the second objection, that her privy examination was not taken to the instrument, it is sufficient to say that the statute in terms applies to a “ deed or other writing purporting to be a conveyance,” and not to such an instrument as the one under consideration. Under the conclusion to which we have arrived, that Mrs. French’s claim is barred by limitation, it is not necessary to consider the third error assigned. The. fourth and fifth alleged errors raise the question w'hether the lots were the separate property of the deceased mother, Mrs.

Jones, or community property, and if either, whether, under the issues and evidence, the court erred in rendering judgment for the defendants. The land was bought by the husband with community funds, and at his instance the deed was made by the vendor to the wife, Mrs. Jones. Although, as between the husband and the wife and their heirs, this circumstance may be sufficient to show that it w'as intended by the husband to thereby make it the separate property of the wife, yet a presumption to this effect would not be indulged against subsequent purchasers for value without notice. (Smith v.

Boquet, 27 Tex., 507.) It was held in Cooke v. Bremond, 27 Tex., 457, (approved in Kirk v. Navigation Co., 49 Tex., 215,) that an inspection of a deed for land made to a married woman, which deed expressed on its face a valuable consideration, did not constitute notice that the land was the separate property of the wife; but, on the contrary, it authorized the inference that it was part of the community property of the husband and wife, and, as such, subject to be disposed of by the husband alone.

That the fact that a conveyance expressing a valuable consideration was taken in the name of a married woman, imposed no obligation on a purchaser from her husband to inquire whether there were equities between the husband and wife with regard to the property. In that case, the sale by the husband was made during the life-time of the wife, but we see no reason why the same principle should not apply to such sales made after her death. Under the facts and circumstances of the case, and as between the parties to the record, we are of opinion that the land cannot be held to have been the separate property of Mrs.

Jones. The issues, then, are narrowed down to the question, whether the plaintiff's are entitled, in right of their deceased mother, to recover her community interest in the property in controversy. We are of opinion, that as to the claim of plaintiff Mrs. French, it was barred by the statute of limitation of tive years. The suit was brought April 1, 1875. The land was deeded to Mrs. Jones May 5,1846. She died in the summer of 1847.

The sale was made by the surviving husband to Giddings in 1849, who, in that year and 1850, conveyed to the defendants and those under whom they claim, they going into immediate possession, cultivating, using, and enjoying the same, making valuable improvements, &e. Mrs. French was born October 6, 1836, and was married October 15, 1856, when the statute began to run as to her. From that time until the date of the suspension of the statute, January 28, 1861, (Const. of 1869, art. 12, sec. 43,) was four years three months and thirteen days. The statute again commenced to run March 30, 1870.

From that time until the date of the institution of the suit was four years one month and one day, making altogether the time during which the statute was running eight years four months and fourteen days. By

section 14 of

article 12 of the Constitution of 1869, it was provided, * * * “ and married women, infants, and insane persons shall not be barred of their rights of property by adverse possession, or law of limitation of less than seven years, from and after the removal of each and all of their respective legal disabilities.” Our view of this provision is, that it did not change the common-law rule of construction of statutes of limitation, but that it simply extended the time within which, under previously-existing statutes, those under disability had the right to sue; that, in a case like the one now before the court, a married woman could not tack the disability of coverture to that of infancy, but that, when the plea of limitation of five years was interposed, had the Constitution not been abrogated, she had seven instead of five years within which to institute suit from the time of her marriage, when the statute first began to run; that if she was under disability, so that the statute had not commenced to run prior to the adoption of the Constitution, had it remained in force, she had full seven years, after its removal, within which to sue, but that if the statute had commenced to run prior, the time during which.it had run should be counted as part of the seven years.

Tested by this construction, the claim of Mrs. French was barred by limitation, and need not be further considered. Under a clause of the will of Enoch Jones in evidence, and a receipt for §1,000 executed by plaintiff Flora K. Adams in accordance therewith, we are of opinion that she thereby released her cause of action.

The clause referred to is as follows : “I desire §1,000 to be paid to my daughters Olive Ann and Flora K., in full discharge and satisfaction of any interest they may have in their mother’s estate.held in community with me. * * * But in the event either should institute against my estate a suit for the recovery of such community interest, then it is my will and desire that such child shall receive nothing whatever of my estate.” Her receipt was to the effect that, for and in consideration of §1,000 specie to her paid by the executors of Enoch Jones, she renounced all her right and claim in his estate, which she may be supposed to have as heir to her mother, Olive Ann, his wife, except her rights as heir at law of said Enoch, or as legatee under his will, and conveying to his executors all her rights in his estate and in all property acquired during the coverture of her mother, except her rights as his legatee or heir; this renunciation to inure to the benefit of all bis heirs and legatees, in accordance with the terms of his will, and said $1,000 being in full satisfaction of the special legacy left to her' by her father as heir of her mother, Olive Ann. [Opinion delivered October 28, 1879.] As to the only remaining plaintiff, Mrs.

Washington, in addition to the receipt before mentioned for $5,760.75, there was also in testimony an instrument dated August- 23,1860, signed by her and her husband, which, in consideration of $1,000 paid to her by her father, Enoch Jones, released to him all her right and title to her deceased mother’s estate, so far as it may have been acquired during the coverture of her deceased mother with said Enoch Jones, by virtue of any community property existing between them at the time of her death, and binding herself, heirs, and representatives to never set up or pretend any title thereto.

This instrument was at least prima-fatie evidence of a release of all her interest in her mother’s estate; and the court below having found against her, and there being no error apparent of record as to any of the plaintiffs, the judgment is affirmed. Affirmed.