A proper disposition of this appeal requires that we consider but one of many interesting questions presented. The action is one of trespass to try title, wherein appellee was awarded against appellant a recovery for 320 acres of land, survey number 311, in Callahan County.
The tract was originally the property of the Southern Pacific Railway Company. On August 7, 1860, that corporation conveyed it, among many other surveys, to Hall, Pope, and Scott, as trustees. This conveyance provides, that the sections therein described, 400 in number, should be distributed pro rata by the trustees named among certain creditors of the corporation, whose names, with the amounts of their respective claims, were set forth in a schedule attached to the instrument. This schedule named E.A. Blanche as a creditor in the sum of several thousand dollars.
On November 24, 1864, the trustees, Hall, Pope, and Scott, executed a deed to one Caroline Schwartz, reciting the execution to them of the prior deed of August 7, 1860; that the trustees have ascertained by calculation the amount of land due thereunder to each beneficiary, and that it appears that E.A. Blanche is entitled to a part of the lands; wherefore *Page 311 the trustees, "in consideration of the premises, and the further consideration of $5 to us in hand paid by said E.A. Blanche, and at his request, have this day bargained, sold, and conveyed, and do by these presents bargain, sell, and convey to Caroline Schwartz the following described tracts of land, to-wit, * * * [including the section in controversy] * * * to have and to hold the said premises as above described, unto the said Caroline Schwartz, her heirs and assigns forever."
At the date of this deed, and for many years thereafter, Caroline Schwartz was the wife of Ezekiel Schwartz. This instrument was a muniment in defendant's chain of title. As such it was offered in evidence, and was rejected by the court, on the ground that it appears upon its face to have vested the title of the land in Caroline Schwartz as separate and not as community property. The record places it beyond question, that if this view entertained by the trial court be erroneous, the judgment must be reversed.
The question, then, is whether the deed to Caroline Schwartz, adjudged alone by its recitals, shows the land to be the separate property of the wife, Caroline, or the community property of herself and her husband, Ezekiel.
We are of opinion, that upon its face the deed is to be viewed as vesting the title to the land in the community, and not in the separate right of the wife, and that the court erred in holding to the contrary. The court evidently regarded the recitals in the deed as importing a gift to the wife. When during coverture a conveyance is executed to either of the spouses, whether in the name of the husband or the wife, it is presumed to vest the title in the community. Higgins v. Johnson, 20 Tex. 389; McDaniel v. Weiss, 53 Tex. 259; Parker v. Coop, 60 Tex. 111 [60 Tex. 111]. The fact that the consideration named in the deed is nominal only is not sufficient to rebut the presumption. Wedel v. Harmon, 59 Cal. 516 . We think that this presumption should obtain unless the deed expressly or by necessary implication limits the title conveyed to the separate use of one of the spouses. In this instrument we find no recitals expressing or indicating such limitation.
We are thus constrained to reverse the judgment and remand the cause, and so order.
Reversed and remanded. *Page 312