Carr v. Tucker

Moore, J. The 14th Section of Article 12th of the Constitution says: “ The i-ights of married women to their separate “ property, real and personal, and the increase of the same, “ shall be protected.” And it is insisted that thereby the hire of the separate property of the wife, such as a wagon and horses, is made a part of her. separate estate. ■ To maintain this proposition, it must be shown, that any profit, interest, or revenue arising from the use of such property is a part of its increase. But the word “increase,” as used in our statutes, relating to separate and community property, had, previous to the adoption of the Constitution, been held not to convey so broad an import. By the Statute of 1848, defining the marital rights of parties, “ the increase of all lands or slaves,” of the separate property of either the husband or wife, is declared to be separate property. In an etymological sense, as was said by this court, in the construction of the statute it cannot be doubted that the word £? increase,” as applied to land, means that which grows out of it, or that which is produced by its cultivation. Yet to adopt this meaning of it in the interpretation of this statute, it was held, would lead to inequitable results wholly inconsistent with the recognized principles of law, upon which our system of community property is based. And therefore, notwithstanding the etymological meaning of the word, the court held that the [337] crop grown upon the land of the wife by the labor of her slaves, was community property. But certainly no one can insist that the word “ increase ” can in any etymological sense signify the hire or profit derived from the use or employment of personal property. Who ever imagined that under the law of 1848, the hire of the slaves of the wife was her separate property ? That it was not, is so obvious that this is referred to by the court as illustrating the argument leading to the conclusion that the crop grown on the wife’s land is not “ increase ” of land in the sense of the statute (De Blane v. Lynch, 23 Texas, 25; Forbes v. Dunham, 24 Texas, 612; Portis v. Parker, 22 Texas, 702; Bateman v. Bateman, 25 Texas, 270.) The word “ increase ” having, received a judicial construction prior to its use in the Constitution, it must be inferred that it was used in a like sense in that instrument. It cannot, therefore, we think, be plausibly maintained that the profits realized by the use of the wife’s personal property, or money received from its hire while in possession, and subject to the control of the husband, does not form a part of the community estate. It does not follow, however, that appellant is therefore entitled to recover against the damages for which he was liable for the wrongful detention of the property of the wife—a demand which he may have against the husband. While, as we have said, the products and profits accruing from its use, as well as money realized by the husband or wife from the hire of her personal property, belong to the community. Certainly no one could imagine a creditor could by any direct process have the property of the wife hired to pay his debt, or appropriated to. his use in any manner, to this end. Would not this, in effect, be done if he could wrongfully seize and hold the wife’s property, and then reconvene for his demand on the husband against his liability for its use and hire, while suit is pending against him for its recovery ? While the wife’s property is in the possession and under the control of the husband, the trouble of its management, and the ordinary expenses of the preservation and maintenance of prop [338] erty, such as that for which the suit is brought, devolves upon him, and is a charge upon the community. But when it is taken by a wrong-doer from the control of the husband, and the wife is deprived of its entire use and enjoyment, it wonld seem but reasonable that she should be compensated for its wrongful detention. The statute regulating sequestrations makes it a condition upon which the defendant may replevy the property sequestrated, if movable, that he will give bond conditioned, in part, that he will have the property, with the value of the hire, fruits, and revenue therof, forthcoming, to abide the decision of the court, or that he will pay the value thereof, and of the hire, fruits and revenue, in ease the suit is decided against him. This statute, we think, gives the owner of the property the right .to recover its hire, fruits and revenue, as incident to the property, as plainly and evidently as it does the property itself, or its value. If the suit is brought by a married woman for her separate property, the statute gives her the amount adjudged for hire during the pendency of the suit, as fully and completely as does the Constitution secure to her the property or its value. The judgment is an entirety, and the entire recovery vests in her as her separate property by force of the statute, free from the demands of the defendant, or any one else, against the husband. If this was not so, and the defendant could offset the value of the hire by a demand against the husband, as he may elect whether he will restore the property or pay its value,—if he could keep the case in court, until by use the property should become almost valueless, he might by its wrongful detention, in effect, appropriate the corpus of the wife’s personal property to the payment of the husband’s debt. The judgment is reversed, and the cause remanded. Reversed and remanded.