Fuller v. Harwell

MARKS, J.

On or about June 13, 1927, plaintiff recovered a judgment against the defendant, T. J. Harwell. On May 9, 1928, an execution was issued and a levy made upon the livestock described in plaintiff’s complaint in the action now here on appeal. The defendant, Sue Harwell,

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filed a third party claim against which the plaintiff indemnified the sheriff. Thereupon Mrs. Harwell gave an undertaking pursuant to the provisions of the Code of Civil Procedure and the property was released to her.

This action was subsequently filed and the only issue involved here is whether or not this personal property so released was the separate property of the defendant, Sue Harwell, or the community property of both defendants and therefore subject to the levy of the execution. The trial court found that the property was the separate property of Mrs. Harwell and rendered a judgment in accordance with such finding.

The case comes before us upon a bill of exceptions in which the only specification of error is that the evidence is insufficient to sustain the finding of the trial court that the personal property described in the complaint was not community property of the defendants, but was the separate property of Mrs. Harwell.

There is evidence in the record which discloses that in the year 1924 Mrs. Harwell was given young turkeys by her brother, which turkeys she later sold for about $300. She invested a small portion of this money in hogs, which she sold in a few months for $350. She reinvested a small portion of this money in more hogs in 1925. She was given other young turkeys and young heifer calves. From the profits on these adventures she accumulated additional dairy cows and in June, 1927, had some of the hogs, dairy cows and about $700 in cash. She purchased additional dairy cows for $1700, using the $700 profits from the former transactions and $1,000 which she borrowed from a bank upon her note secured by a chattel mortgage upon the hogs and cows she already possessed and the ones which she was purchasing. There is evidence that the loan was made to her upon the sole security of the livestock described in the mortgage. This evidence is ample and sufficient to support the finding of the trial court that the cattle and hogs were her separate property.