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: 333
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1875.] CAxE v. TUCKER. 33
Argument for appellee.
sidered community and what is separate property, and that the
Constitutions of 1845 and 1866, in which the term " increase "
is not used, are the basis of all the decisions our Supreme Court
has made on the question now presented for adjudication in
this cause. With the difference, then, between the organic
laws, under which these decisions were made, can they be invoked,
with any show of reason, to sustain the claim of the
defendant Carr in his plea in reconvention ? Do they sustain
the claim set up, that the hire of the horses was community
property ? The leading cases on this subject are those of De
Blane v. Lynch, 23 Texas, p. 26, and Forbes v. Durhamn, 24
In the case of De Blane v. Lynch, Justice Bell discusses the
meaning of the term "increase," as used in the Act of 1848.
He says: "It cannot be doubted that the word ' increase,' as
" applied to land oi to the soil, means ' that which is produced
" 'by the cultivation of it.' * * * * But to adopt this use of the
"word increase,' as used in our statute, accordingly, would,
'we think, be wholly inconsistent with the recognized prin"
ciples of law upon which the system of community is based."
Proceeding further, he says: " The principle which lies at the
"foundation of the whole system of community property is,
"' that whatever is acquired by the joint effort of the husband
"'and wife, shall be their common property.'"
With regard to this opinion we have to remark,
First. That the Constitution of 1869, in its terms, seems to
have changed the then "recognized principles of law" inconsistent
with the true meaning of the word " increase."
Second. The framers of the Constitution of 1869 evidently
intended torepeal such portions of the Act of 1848 as might be
"inconsistent" with the terms they used, and, by using the
word "' increase " in the organic law, put it out of the power of
the Legislature and the courts to restrict the protection of the
rights of married women, which it was their purpose to extend.
Third. .The word " increase," as used in the Constitution of
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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/m1/341/: accessed May 24, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .