Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42. Page: 127
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1875.] HUGHES v. ROPER. 127
Opinion of the court.
them under a conveyance from their father, and levied on
under an execution against him in favor of defendant.
Appellee answered, alleging the conveyance to be fraldulent.
By anl amended petition, plaintiffs attempted to set
up equitable ownership of the lands conveyed prior to the
conveyance. The facts stated, however, were that the
lands were purchased with the separate funds of their deceased
mother, or community funds of the first marriage.
These averments showed that Reece Hughes, sen., was at
least part owner of the lands levied on, unless divested of
his interest by the conveyance. The general verdict of the
jury for the defendant settled the real issue of the case, viz,
that the conveyance was fraudulent as to Roper. The verdict
proceeded, however, to subject to Roper's execution
"the property of Reece Hughes, sen., and the community
property of the second coverture," and the judgment vacates
the conveyance and dissolves the injunction only as
to the separate estate of Reece Hughes, sen., and the community
of the second marriage. We think that all of the
verdict, except the general finding, might have been treated
as surplusage, and that the appellee might have claimed a
dissolution of the injunction in full. It would seem that
this part of the verdict was induced by a charge of the cogrt
founded, doubtless, on an amended answer of appellee seeking
affirmative relief. The only practical effect of this part
of the verdict and judgment is that it gives the appellants
the benefit of a partial perpetuation of the injunction, to
which they were.not entitled. When it is added that nowhere,
either in their pleadings or evidence, do they furnish
any data for distinguishing the separate and community
estates, it would seem that this uncertainty is no error
of which they can complain.
The assignment objects that the charge as given was defective.
It does not appear, however, that any instructions
were asked by appellants.
The judgment is affirmed.
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42., book, 1881; St. Louis, Mo.. (texashistory.unt.edu/ark:/67531/metapth28531/m1/135/: accessed February 18, 2018), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .