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: 336
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336 CARR v. TUCKER. [Term of
Opinion of the Court.
But another question is here presented for the consideration
of the court in this connection, and that is as to the plea of
This plea is sought to be maintained on the ground of fraud
on the part of the husband-on the ground of his fraudulent
representations in the matter of the horse. In no way is the
wife, in this case, a party to any fraud tli: husband may have
perpetrated against the defendant. But, as against the defendant
himself, were he a sole defendant, and the hire was his separate
property, the plea for damages'in such a tort would not be
allowed. (Hart v. Davis, 21,412.)
MOORE, J. The 14th Section of Article 12th of the Constitution
says: "T The rights 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 propertv
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
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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/m1/344/: accessed January 21, 2018), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .