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: 332
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332 CARR v. TUCKER. [Term of
Argument for appellee.
In this case there are two questions presented for the consideration
of the court:
First. Was the hire of the horses sued for the separate
property of the wife ?
Second. Was the hire of the horses liable to the claim of
the defendant Carr, as set up in his plea of reconvention ?
The decision of the first question depends on the construction
of Article 12, Section 14, of the Constitution of 1869.
Since the adoption of this Constitution, what is and what is
not community property has not been decided by statute or by
judicial decisions. The Act of March 13, 1848, and all the
decisions made on this subject, were based on the Constitutions
of 1845 and 1866. It may be conceded, therefore, that under
these Constitutions, and that Act of the Legislature, the hire of
the horses, as claimed in this case, was community property;
but a reference to these Constitutions, and a comparison of the
language used in them with the language used in the Constitution
of 1869, will show at once that the Convention of 1869
intended, and did enlarge the protection theretofore given to
married women in their rights of separate property. In the
two first of these, in 1845 and in 1866, the term " increase" is
not used at all. We first find it in the law of March 13, 1848,
and then it refers to "land and slaves" only, and the second
section of the Act defines what shall be community property.
(Paschal's Digest, Articles 4641-2.) Now, the clause in the
Constitution of 1869 reads as follows: " The rights of married
"women and their rights of property, real and personal, and
"the increase of the same, shall be protected by law." (Const.,
1869, Article 12, Section 14).
Here the word " increase" is used for the first time in any
Constitution, and refers, not, as in the Act of 1848, to lands and
slaves only, but to all personal property, of whatever character
or description it may be.
The court will bear in mind, that the Act of 1848, wllich first
uses the term "increase," restricts it to lands and slaves, and
then in the second section of the Act defines what shall be con
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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/m1/340/: accessed July 24, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .