able, it was not error to admit the testimony permitted to comply therewith, which was of a witness that he was in the employ of such granted by the court, and a sufficient bond former owner when it made an assignment for the benefit of creditors, and that he assisted in was then filed. The court declined to dispreparing a statement of its assets, which state- miss the case, and appellants then orally ment was intended to be accurate and complete, presented their motion for continuance for and that, to the best of his recollection and un- the want of the testimony of the two Holderstanding, the notes were not among such assets, but had been transferred by indorsement lingsworths, through whom appellee claims, to the person through whom plaintiff claimed. by whom they could show that said lots had [Ed. Note. For other cases, see Trespass to been purchased by them for a consideration Try Title, Cent. Dig. § 54; Dec. Dig. 39.] in part of deferred payments, which contract 3. TRESPASS TO TRY TITLE 41 TITLE TRANSFER OF NOTES-SUFFICIENCY OF EVI- they had abandoned; that it would cost several hundred dollars to procure the testimony of said parties, one of whom was in Toronto, Canada, and the other in Atlanta, Ga.; that appellants did not wish to incur the expense of procuring said testimony in view of the uncertainty of appellee making a cost bond. There was no diligence shown

DENCE.

Evidence in an action of trespass to try title, wherein the question of title depended on whether the former owners of the property had transferred, prior to making an assignment for the benefit of creditors, vendor's lien notes retained by them, held to show that the notes had been transferred.

[Ed. Note.-For other cases, see Trespass to to procure said testimony, and the delay by Try Title, Cent. Dig. §§ 62, 63; Dec. Dig. 41.]

4. VENDOR AND PURCHASER

ASSIGNMENT.

261-LIEN

Where a deed reserved a vendor's lien securing the purchase-money notes, and a trust deed authorizing appointment of trustee was executed as additional security, the action of the grantor's successor in interest in the land in appointing a trustee and the sale of the property under the trust deed after the notes had been transferred to a third person was unauthorized and conveyed no title.

[Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. §§ 674-686, 688-695; Dec. Dig. 261.]

appellee in complying with the rule requiring a bond for costs is not a sufficient excuse for want of diligence. Railway Co. v. Styron, 66 Tex. 421, 1 S. W. 161.

In the case just cited it was said by Mr. Stayton, J., that:

"The pendency of a contest as to the sufficiency of the affidavit in lieu of a cost bond was no excuse for the failure to use the necessary means to procure the evidence, and, besides, appellant knew that the appellee might comply with the rule for costs at any time by giving the proper cost bond."

The trial court did not err in overruling

Appeal from District Court, Dallas Coun- the motion for continuance. ty; E. B. Muse, Judge.

Trespass to try title by L. W. Campbell, Jr., against I. G. Etheridge and others. From judgment for plaintiff, defendants appeal. Affirmed.

Etheridge, McCormick & Bromberg, of Dallas, for appellants. Gilbert H. Irish and L. W. Campbell, both of Dallas, for appellee.

RAINEY, C. J. This is an action of trespass to try title to recover lots 1 and 2 in block 168, Dallas Land & Loan Company's addition No. 3 to Oak Cliff, now a part of the city of Dallas. The suit was instituted by appellee, and appellants filed a general denial and plea of not guilty. The cause was tried by the court without the intervention of a jury, and a judgment was rendered in favor of appellee, from which this appeal is taken.

[2, 3] The evidence shows that the two lotsin controversy were on September 22, 1890, deeded to the Hollingsworth Bros. by the Dallas Land & Loan Company, the then owners, the consideration being $150 cash, and four notes executed by said Hollingsworth Bros., one for $100, payable in six months, and three for $250 each, payable, respectively, September 22, 1892, September 22, 1893, and September 22, 1894, said deed containing a reservation of the vendor's lien, and as additional security a deed of trust was executed to E. L. Snodgrass. The deed was signed by T. L. Marsalis, as president, and E. L. Snodgrass, as secretary, of said company, and the same was duly recorded in 1890. The Hollingsworth Bros. never paid said notes or either of them, but abandoned their contract and left the state. On June 9, 1891, the Dallas Land & Loan Company [1] Error is assigned to the action of the made to C. E. Bird, as assignee, a general court in overruling appellants' motion for assignment for the benefit of creditors. On continuance. The suit was filed in Novem- July 21, 1892, C. E. Bird, assignee, deeded ber, 1913. At the December term, 1913, an to T. L. Marsalis all of said property then order was entered requiring appellee to give held by him. On July 21, 1910, Marsalis a bond for costs. No action to comply with deeded to David Scott the land in controverthis order by appellee was taken until the sy. Scott on August 23, 1910, deeded to I. June term, 1914, when the case was called G. Etheridge. Marsalis and Scott on June 2, for trial, when the appellee announced 1913, conveyed the lien and notes to Etherready. Whereupon the appellant moved to Snodgrass, as trustee under the Holdismiss the case upon the ground that the lingsworth Bros. deed of trust, resigned, and rule for costs had not been complied with. Etheridge appointed J. H. Addison as subThereupon the appellee asked leave to be stitute trustee; such substitution being au

idge.

notes, and the appointment by Etheridge of I received by her through others, was inadmissible Addison as trustee and the sale under the as hearsay. trust deed was unauthorized and conveyed

In trover, testimony as to market value of certain grass seed was inadmissible as being too weak to be considered, where the witness based passed inspection by a seed association, and the his estimate on the value of seed which had record showed that the seed in question had not gained that standard, and the witness admitted on cross-examination that he was not familiar with the situation at that time, had not known of any sales, and had been too busy to give the matter any thought.

FIRST NAT. BANK OF PLAINVIEW et al. Cent. Dig. §§ 424, 426-428; Dec. Dig.

the separate property of either one or the other, shall be deemed the common property of the husband and wife, and during coverture may be disposed of by the husband only," with the addition, "provided, however, the personal earnings of the wife, and rents from the wife's real estate, the interest on bonds and notes belonging to her and dividends on stocks owned by her shall be under the control, management and disposition of the wife alone, subject to the provisions of article 4621, as hereinabove written." Of course, if you start with the assumption that this statute makes the products raised upon the wife's real estate the separate property of the wife, instead of community property, this case is ended in favor of the wife; but we are unable to give the statute the interpetation suggested. If it were not

the ground as much as possible, "and agreed to put it in cultivation for my own benefit." He purchased the seed for planting and I had an agreement that later, when the seed were sold, "I would keep a memorandum of what he was out on the seed and the entire crop and when I sold it I would repay him." I had a man to plow the land and get it in shape to plant, and my two sons cultivated it. I agreed to pay the older boy $20 per month and the smaller boy $10, to be paid to them when the seed was sold. Mr. McWhorter showed the boys how to manage the crop, and a few times went to the field for that purpose, but never worked the same. When the seed was thrashed, I had it brought to the house, placed in a small garage upon the place; and, when the crop was growing, I had it looked after with a view of having it entered in the Sudan Seed Association, and also had the same inspected by the inspectors at the Experimental Farm, and instructed my son to join the association so that the seed for the settled channels of the law, dug deep could be sold by it; and after the seed was by successive interpretations heretofore thrashed, and before I had put it into the as-made, the question might at least become desociation, it was levied upon before the association building was ready for the reception of the seed.

The husband did not testify in the case. The appellant bank assigns that the court erred in peremptorily instructing the jury to find that the seed was the separate property of the wife, and under the assignments the following propositions are presented:

*

"The credibility of the witness is a question for the jury, and it was error for the court to assume the truthfulness of plaintiff Kate H. McWhorter's unsupported testimony. * * "The undisputed evidence shows that the said seed were produced by the labors of the husband and wife, and their minor children, and the mere agreement between the husband and wife, before the seed was planted, could not have the effect of changing the law of marital property rights. *

[1] At the threshold of the case appellee presents an exposition of the amended acts of 1913 to article 4621, with reference to the rights of married women, insisting that on account of the change of the law there is a change of the title of this character of property. Under this act, as formerly, all property, real and personal, of either spouse, acquired before marriage, and afterwards, by gift, devise, or descent, "as also the increase of all lands thus acquired," shall be the separate property of the spouses. This amendment does say:

"During marriage * the wife shall have the sole management, control and disposition of her separate property, both real and personal," provided the husband joins in the manner prescribed by law for the conveyance or incumbrance of her separate real estate: "and the joint signature of the husband and wife shall be necessary to a transfer of stocks and bonds belonging to her or of which she may be given control by this act."

It further says:

"Neither the separate property of the wife, nor the rents from the wife's separate real estate, nor the interest on bonds and notes belonging to her, nor dividends on stocks owned by her, nor her personal earnings, shall be subject to the payment of debts contracted by the husband."

Article 4622, following 4621, just quoted from, provides, as before, that:

"All property acquired by either the husband

batable. The statute does give the wife the management, control, and disposition of her real property, provided that the husband, when it comes to the disposition, joins in the conveyance; and, if he should refuse to join under article 4621, the district court, upon satisfactory proof that the conveyance would be advantageous to her interest, may grant her the permission to convey. To give the wife the management and control of the real estate, and not give her the real incidents and fruits of that control, might, in an ethical sense, appear contradictory; and though it has appeared to a great many in this state that the construction that, although the thing itself may be separate property, but that which grows out of it and is produced upon it and which makes property really beneficial is community, is an incongruous interpretation; but the Supreme Court of this state has placed the same upon what it has conceived a broader ground, as to the meaning of the old statute and the result of the community partnership, and the presumed labors of each between husband and wife. In the early case of De Blane v. Lynch, 23 Tex. 29, where it was held that crops grown upon the separate property of the wife, and by the labor of her slaves, were community property, the Supreme Court said:

*

"The principle which lies at the foundation of the whole system of community property is that whatever is acquired by the joint efforts of the husband and wife shall be their common property. * It is true that in a particular case satisfactory proof might be made that the wife contributed nothing to the acquisitions; or, on the other hand, that the acquisitions of property were owing wholly to the wife's industry. But from the very nature of the marriage relation the law cannot permit inquiries into such matters. The law therefore conclusively presumes that whatever is acquired, except by gift, devise, or descent, or by the exchange of one kind of property for another kind, is acquired by their mutual industry. If a crop is made by the labor of the wife's slaves, on the

wife's land, it is community property, because the law presumes that the husband's skill or care contributed to its production; or that he, in some other way, contributed to the common

It may be that on account of the wife's | session shall have come to, and remained with, management and control of her separate real the donee or some one claiming under him. Article 3968, Vernon's Sayles' Rev. Civil Statestate the presumption that the husband's utes. labor or skill contributed to the production This statute precludes symbolical or conof the crops grown thereupon might not pre-structive possession; actual possession must vail, but the presumption that he still con- come to, and remain with, the donee or some tributes to the common acquisitions and the one claiming under him. Love v. Hudson, 24 community partnership, in a general sense, Tex. Civ. App. 377, 59 S. W. 1127; Eldridge v. of course, prevails, article 4622, as amended McDow, 132 S. W. 518. We are not deciding by the Legislature of 1913, still says that that acts of control and manifestations of all property acquired by the husband or wife ownership over articles in heavy bulk would during marriage shall be deemed the common not constitute actual possession, if the other property and during the coverture may be elements, intention to give, and relinquishdisposed of by the husband only; and ar- ment by the donor of dominion over the propticle 4621, as amended, still prescribes that erty to the donee, are shown. It is elementhe property acquired only by gift, devise, or tary that an unexecuted parol promise to give descent, constitutes the separate property is void. It is the fact of delivery and relinof each. Hence the status of the title of quishment of dominion that converts the unthe common property, and of the separate executed and revocable purpose to give into a property by gift, devise, or descent, we think complete gift. If the products of the farm, under this statute continues to remain the which are to be severed, constitute the comsame. It would have been easy for the Legislature to have said that the "increase" munity property, it cannot be doubted that at of separate real estate shall include the least, after severance, the husband had the management, control, and disposition of such products grown upon the same without leav- products, and it is equally true that such ing it to a strained construction by the products would be "chattels" within the courts to abrogate the settled rule imbedded statute quoted. Hence the intention of the in the law by many decades of interpreta- husband to give, and the delivery by him tion. The court of the Second district has into the actual possession of the wife, must in effect given the amended statute the same be conclusively shown to take a case of this interpretation as we give it. Tannehill v. character from the jury. Tannehill, 171 S. W. 1050; Scott v. Scott, 170 S. W. 273.

[2] As to the issue whether the transaction constituted a gift, it is the law of this state that the question, whether particular property is separate, or community, must depend upon the existence or nonexistence of the facts, which by the rules of law give character to it, and not merely upon the stipulations of the parties that it shall belong to one class or the other. Kellett v. Trice, 95 Tex. 160, 66 S. W. 51. Justice Williams said in that case:

"It has been held in several cases that the husband and wife cannot, by their mere agreements, alter the character given to property by the law acting upon the facts under which it is acquired. Cox v. Miller, 54 Tex. 27; Green v. Ferguson, 62 Tex. 529."

If the products of Mrs. McWhorter's farm are prima facie community property, the acquisition of title of the husband's half interest must have been a gift, otherwise the title remained in the community; and, if the record in this instance does not conclusively prove a gift, the trial court necessarily erred in his peremptory instruction.

"No gift of any goods or chattels shall be valid unless by deed or will, duly acknowledged or

In the case of Little v. Birdwell, 21 Tex.

609, 73 Am. Dec. 242, our Supreme Court, quoting from the Alabama Supreme Court,

said:

It may be that the true rule in such cases is that such proof is that character of evidence, which, in order to be conclusive, leaves no room for ordinary minds to debate as to the inference to be deduced. Lord v. Insurance Co., 95 Tex. 216, 66 S. W. 290, 56 L. R. A. 596, 93 Am. St. Rep. 827, where a brother gave his sister an insurance policy. The jury in this case would have had the right to weigh the relationship of the par

ties, the fact that the wife, vitally interested in the litigation, is testifying on the main issue in the cause, and that the husband's testimony is neither offered nor its absence excused; and to further consider whether the arrangement or agreement testified to by her was merely an attempt to change the status of community into separate property, without including the idea of a gift, which would be void under the decisions cited and quoted from. When she informed her husband that if he would finance the crop and that she would superintend it, employ the boys to cultivate it, and reimburse him out

of the crop, the crop to be hers, we are unable to say that such an agreement conclusively exhibits an intention to give—a pure