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562.

There is no statement of facts in the record. The facts found by the trial court and his conclusions of law are as follows:

"1. The court finds that the allegations of cruel treatment of the plaintiff (as set out in the petition of the plaintiff) by the defendant have been sustained by the evidence. That the defendant has struck, choked, and assaulted the plaintiff, as claimed in the petition, and has cursed and abused her, and that the nature of said treatment is such as to imperil the health and safety of plaintiff.

The court finds that the parties have one child about five years old, a girl, and that plaintiff is in every way qualified and able to support and care for said child.

"3. On the day — 1897, the intervener, Mariah Earthman, made a verbal gift of the lot of land known as the Mariah Earthman lot to the plaintiff and defendant. The donees went into immediate possession of said land at the request of said Mariah Earthman, and upon the faith of said gift made permanent and valuable improvements upon said land, many times exceeding its value, with knowledge and approval of said Mariah Earthman.

“4. The house and lot known as the Ferrill place was bought by defendant before his marriage and is his separate property. “5.

All the balance of the property except the Ferrill place is community property.

“6. The defendant is a vigorous, stout young man, of good earning capacity. He gets a salary of about $50 per month, and owns in his separate right the house and lot known as the Ferrill place, which is almost equal in value to the whole of the community property. The plaintiff's means of support for herself and child is the evocation of school teacher.

". The plaintiff before and after the marriage loaned the defendant $98.

“8. The Mariah Earthman lot is worth about $6000. The Ferril lot about $550. The personal property about $150.

“Conclusions of Law.-1. The treatment of plaintiff by defendant is of sufficient nature to authorize and require the court to grant her a divorce.

“2. The title of the Mariah Earthman lot passed by her parol gift.

"3. The custody of the child should be awarded to the plaintiff, but the defendant should be permitted to visit at all. reasonable times.

“4. The defendant is entitled to recover the Ferrill place, it being his separate property. “5.

The plaintiff should have judgment against defendant for $95. 6. The court should in the exercise of its equitable powers give all the community property, both real and personal, to the plaintiff, it being necessary to provide her a home and something wherewith to furnish it. Therefore judgment is directed to be entered in accordance with these findings and conclusions."

The assignment assailing the judgment for divorce do not require

extended notice. They are of such a nature as necessarily to be without merit in the absence of a statement of facts.

The second assignment, under which the part of the judgment in favor of plaintiff for the sum of $95 is assailed, must be sustained. There is no allegation of a liability of that nature and nothing in the pleadings to support that feature of the judgment. Bohan v. Bohan, 56 S. W. Rep., 959.

Under the third assignment the defendant complains of the judgment awarding to plaintiff all the community property both real and personal. We think this assignment should also be sustained. Article 2980 of the Revised Statutes provides: “The court pronouncing the decree of divorce from the bonds of matrimony shall also decree and order a division of the estate of the parties in such a way as to the court shall seem just and right, having due regard to the rights of each party and their children, if any; provided, however, that nothing herein contained shall be construed to compel either party to divest himself or herself of the title to real estate.”

The judgment of the court in the respect complained of clearly contravenes the provisions of the article quoted, for the judgment specifically divests the defendant of his entire interest in the community real estate and vests the entire title thereto in the plaintiff. The effect of the limitation on the power of the court in divorce proceedings to divest title to real estate and the power conferred to equitably divide the estate of the parties has not been distinctly settled by the decisions, and we find them in some conflict and confusion.

In Rice v. Rice, 21 Texas, 68, it is said the discretion vested in the courts with reference to the division of the estate is broad and ample. In that case the income of the entire estate was adjudged to the wife for the support of herself and children.

In Simon v. Simon, 23 Texas, 344, the wife was given half the conmunity estate with lien on the husband's interest to secure her against outstanding community debts. But Justice Bell in delivering the opinion stated it was impossible to prescribe a rule applicable to all cases.

In Trimble v. Trimble, 15 Texas, 18, the community estate was unequally divided, but the judgment was affirmed.

Mr. Speer, in his work on the Laws of Married Women, expresses the view that the restriction in the article on the power of the court to divest title to treal estate can apply only to separate property, as the article expressly empowers the court to divide the estate, which in effect empowers it to vest in each party to the exclusion of the other the title to the part set aside to each. Sec. 356.

The courts, however, do not seem to have taken this view, for parol partition of lands have been invariably upheld, notwithstanding the requirement that conveyances of real estate must be in writing. Such a partition is not in a strict sense a conveyance of land, but a division of lands the title to which is jointly in both.

In Stone v. Stone, 41 Southwestern Reporter, 1022, a divorce proceed

ing, the strict rule of partition seems to have been applied, and the judgment of the trial court was reversed because the partition was not equal.

The case of Tiernan v. Tiernan, 34 Texas, 523, is exactly in point, the property involved being a homestead, and the custody of the one child of the marriage being awarded to the wife. The homestead was. adjudged to the wife absolutely. The Supreme Court reformed the judgment, holding that the trial court had the power to do no more than decree to her a life interest therein, and such an estate was awarded her on appeal.

We are content to follow the case last cited. The judgment of the trial court is therefore reformed in so far as it affects the community realty, and to the wife is adjudged an undivided half interest in fee simple and the use of the entire property for life. To the defendant is adjudged the remaining half in fee subject to the use above imposed. So much of the decree as gives plaintiff judgment against defendant for $95 and a lien on the separate estate of the husband to secure its payment is reversed and judgment here rendered that she take nothing in that respect. The record does not sufficiently disclos the status of the parties as to the community personalty to authorize this court to disturb that feature of the judgment.

The judgment for divorce, awarding the custody of the child and the personalty to the plaintiff is affirmed.

Reformed and affirmed.

FIRST NATIONAL BANK OF NAVASOTA V. J. M. McGINTY,

ADMINISTRATOR, ET AL.

Decided June 26, 1902.

1.-Insanity-Evidence-General Reputation.

In an action on a note and mortgage wherein the insanity of the maker was pleaded in defense, insanity could not be proved by evidence that the general reputation of the maker in the community in which he lived was that of an insane person. 2.-Same-Expert Evidence-Physician—Hearsay.

Nor could a physician testify as a witness in the case, expressing his opinion as to the insanity of the maker based upon what had been told him by others; but as an expert he might state such opinion where it was based on facts detailed by other witnesses in the case. 3.-Same-Evidence Immaterial-Notice.

Notice to plaintiff bank of the mental condition of the maker of the note being immaterial, it was error to admit testimony as to the statement of the bank's cashier that he thought at the time the note was executed that the maker was of unsound mind. 4.—Plea Without Evidence-Charge Withdrawing Issue.

Where defendant pleaded failure of consideration and another defense, but introduced no evidence in support of the former plea, it was error to refuse a charge withdrawing the issue of failure of consideration from the jury.

5.-Lunatic-Contract Voidable Only-Notice.

The contract of a lunatic is only voidable, and not void, and this irrespective of whether or not the person dealing with the lunatic knows of his mental condition. 6.-Same-Recovery for Necessaries.

In an action on a note executed by a lunatic, plaintiff is entitled in event to recover such portion of the consideration as is shown to have been expended by the lunatic for necessaries or for the protection and benefit of his estate.

Appeal from Grimes. Tried below before Hon. J. M. Smither.

W. W. Meachum, Neal & Boon, and John M. King, for appellant.

Buffington & Buffington, for appellees.

PLEASANTS, ASSOCIATE JUSTICE.—This is a suit brought by the First National Bank of Navasota to recover upon a note for $1000 executed by Robert McGinty, deceased, on the 5th day of October, 1897, and to foreclose a mortgage lien given by said McGinty on land described in the petition to secure the payment of the note. Appellee J. M. McGinty, who is sued individually and in his representative capacity, is the administrator of the estate of Robert McGinty, and also an heir at law. The other appellees are S. M. Cook, the trustee in the deed of trust sought to be foreclosed, and the remaining heirs of Robert McGinty. The administrator and the heirs of Robert McGinty pleaded in defense of plaintiff's cause of action want of consideration for the execution of the note and trust deed, and that at the time of the execution of said instrument the said Robert McGinty was insane. The trial in the court below resulted in a verdict and judgment in appellee's favor.

We shall not discuss the various assignments of error in detail, but will point out the errors committed upon the trial in the court below which in our opinion require a reversal of the judgment. The defendant's witness Stoneham should not have been permitted to testify, over the objection of plaintiff, that the general reputation of Robert McGinty in the community in which he lived was that of a person of unsound mind. Insanity can not be proven in this way. Foster v. Brooks, 6 Ga., 292; Ashcroft v. De Armond, 44 Iowa, 229; 16 Am. and Eng. Enc. of Law, 612.

The reason of the rule which excludes the opinion of a nonexpert witness as to the sanity or insanity of a person whose mental condition becomes the subject of judicial inquiry, unless such witness states the facts upon which his opinion is based, would necessarily exclude testimony of the general reputation as to sanity or insanity of such person. If one sworn to testify truly is not permitted to give his opinion except upon facts sworn to by him, for a stronger reason the hearsay opinion of those not under oath should be excluded, it being impossible to know upon what facts such opinion is based.

The court also erred in permitting the witness Dr. J. N. Baylor to express his opinion as to the insanity of McGinty based upon what he had been told by others. He could only give his opinion based upon facts within his knowledge, or if testifying as an expert upon the facts as detailed by other witnesses in the case, and he should not have been permitted to testify that from information he had received from others he believed McGinty was of unsound mind.

The question of notice to appellant of McGinty's mental condition at the time the note sued on was executed being immaterial to any issue in the case, it was error to admit testimony as to the statements made by the cashier of appellant's bank to the effect that he thought at the time the note was executed that McGinty was of unsound mind. Williams v. Sapieha, 94 Texas, 430.

The defendants offered no evidence upder their plea of failure of consideration, and plaintiff requested the court to instruct the jury not to consider such plea. This charge should have been given. The defendants set up two defenses, viz., want of consideration and insanity. Upon the latter issue the evidence was conflicting, and as before stated there was no evidence in the case tending to show a want of consideration. The plea of want of consideration was sworn to and was before the jury, and the plaintiff upon the failure of the defendants to introduce any evidence under said plea was entitled to have same withdrawn from the consideration of the jury. Talbert v. McBride, 75 Texas, 95; Newton v. Newton, 77 Texas, 508.

It is well settled that the contract of a lunatic is only voidable and not void, and this irrespective of whether the person dealing with the lunatic knows of his mental condition. It was therefore error for the trial court to instruct the jury that plaintiff was not entitled to recover such portion of the consideration for said note as the evidence might show had been expended by Robert McGinty for necessaries or for the protection and benefit of his estate, if plaintiff knew at the time it took said note that McGinty was of unsound mind. Plaintiff was entitled to recover in any event such portion of the consideration for the note sued on as the jury might find from the evidence was expended by Robert McGinty for necessaries or for the protection and benefit of his estate, and the jury should have been so instructed. Elston v. Jasper, 45 Texas, 409; Askey v. Williams, 74 Texas, 294; Ferguson v. Railway, 73 Texas, 344; Williams v. Sapieha, 94 Texas, 430; Irvine v. Irvine, 9 Wall., 626.

It is not believed that any other errors are shown in the record which would require a reversal of the judgment or which are likely to occur upon another trial of the case. For the errors above indicated, the judgment of the court below is reversed and the cause remanded for a new trial.

Reversed and remanded.

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