This ease was once]before appealed to this Court, (vide Parker, ex’trix, v. Chance and wife, adm’rs, 11 Tex. R. 513,) and it was then decided that the half league *387of land (though the reconveyance from the executor of Slaughter was in the name of the wife) was community property, and consequently that it should have been included in the inventory of the estate of the husband, Edward Ferris, deceased. Lucy Ferris, the surviving wife and administratix, had refused to insert it in the inventory, on the ground that it was her separate property, by gift from her husband ; and when the cause was remanded, she attempted to support the gift by evidence of verbal admissions of her husband to that effect.
One witness testified, that in the fall of the year, 1838, Edward Ferris, the husband, in the presence of his wife Lucy, informed him (the witness) that he had given the one-half of his league to his wife; and another witness proved that in 1847 he had heard him speak of the land as the property of his wife.
As the gift is claimed to have been made in 1838, we will consider,
1st. The provisions of the Spanish Code relative to donations between husband and wife, and
2d, Whether the evidence was sufficient to establish the fact of gift.
The general rule of the Spanish law, and in this particular it is identical with the Eoman law, is that donations between husband and wife are prohibited.
The reasons given by the law and by jurists, for this prohibition, are
1st. That the affections which® should unite the hearts of husband and wife, should not, so to speak, be made venal or be either acquired or preserved by presents.
2d. That the excessive love of one of the consorts, if not restrained, might induce him blindly to despoil himself of all his property, for the benefit of the other.
3d. That importunities and differences might be excited continually, so that one might be compelled to purchase from the other peace and domestic repose, at the cost of his property.
4th. That the resistance which one would make against *388the solicitations of the other, for a gift, might occasion frequent separations and divorces.
To the rule prohibiting donations, there were some exceptions, viz: that it embraced only such gifts as would make the donor more poor and the donee more rich. Gifts, when they had no such effect, were allowed. For instance, a husband might, before acceptance, renounce an inheritance in favor of his wife, to which she had been substituted as heir, for the reason that although the wife derived an advantage from such renunciation, yet the husband did not part with any of his own property—the inheritance not having become hie, as be had not accepted it.
But the more important exception to the rule was, that the donation was valid if not revoked before the death of the donor. This revocation could be made by words or by acts, that is, by an express declaration -of the will of the donor or by an act “ inter vivos” or by will or other final disposition, or tacitly by selling or disposing in any other manner of the subject of the £pft. (L. 4, 5, 6, Tit. 11, Partidas 4; Escriche, Diccionario, Verbo Donacion entre Conguges.)
If it be admitted that in this case there was a gift, yet it is obnoxious to all the exceptions of the law. It not only enriches the donee, to the impoverishment of the donor, but it was revoked in the lifetime of the latter, and especially was it revoked as to the demand of the appellee. This is founded on a purchase of five hundred acres of land, at two dollars per acre, from the husband, Edward Ferris, in 1840, to be satisfied out of this identical land, as soon as, in the language of the instrument, the said Fdward Ferris shall receive a patent from the Government for his own individual headright. It appears further, that the husband, in his lifetime, sold one thousand acres of the land to one B. F. Wright. The donation, then, if made, was revoked, at least so far as regards the claim of the appellee, which must be satisfied out of the land, if that be claimed, or if it be possible; and if not, then out of the pro*389ceeds, unless other rights should in ver vene, which do not appear of record.
But we are of opinion that the evidence was not sufficient to establish a gift. The certificate and land were originally community property. There was no evidence that the bond from Slaughter, to make title to the wife, was recorded, and the deed from the executor of Slaughter to the wife, was not recorded until 1849. These, if recorded, would not have been evidence of separate right in the wife. The presumption would still have been that the property belonged to the community. But, in conjunction with other circumstances, they might have given some indication that the wife intended to claim the property. But the first record is in 1849 (about nine years after this debt was contracted) and the first evidence that the property was claimed by the wife, was that given on the trial. There was no proof that the claim was notorious, or such as would give notice to creditors or purchasers. The whole consists of two declarations on the part of the husband, nine years intervening between them, with no evidence that his admissions went further than the witnesses. The subject matter of the gift also was land, and this could not, even under the laws of Spain, be transferred verbally, unless followed by possession, of which, in this case, there was no evidence.
Upon the whole we are of opinion that there was no sufficient evidence to establish the donation; and if there had been, that it was revoked by the acts of the donor, and can have no effect against the claim of appellee.
Judgment affirmed.