This is a divorce case in which the El Paso Court of Civil Appeals prepared a tentative opinion holding that the trial court erred in awarding to the wife all of the real property owned by the community. Being in considerable doubt as to the correctness of this holding, in view of the statement made by this Court in Hailey v. Hailey, 160 Tex. 372, 331 S.W.2d 299, which was subsequently made the basis of the decision of the Eastland Court of Civil Appeals in Hellums v. Hellums, 335 S.W.2d 390, the presiding judge of the El Paso court certified the following question to us in accordance with Rule 461, Texas Rules of Civil Procedure:
"In view of the prohibition in the statute (Art. 4638)
It appears from the tentative opinion accompanying the certificate that the community estate consisted of both real and personal property. All of the community real estate and a portion of the community personal property was awarded to the wife. No question as to whether the settlement decreed by the trial court was just and right is before us. We are limited to a consideration of the question propounded in the certificate.
The question assumes that a decree dividing community property between divorcing parties which awards real property to one and personal property to another operates as a technical divestiture of title to real property. It seems to be the sense of the El Paso court's tentative opinion that community personal property and community real property must be considered as two distinct interests or estates for division purposes under Article 4638. However, the
In Hailey v. Hailey, supra, this Court said:
The above statement was deliberately made by this Court after a careful consideration of the matter and we now reaffirm the position taken by us in the Hailey case. Any question as to whether the holding evidenced by the quoted portion from the Hailey case may be classified as obiter dicta is now academic. The question is squarely before us in this case and we hold that the proviso in Article 4638 — "nothing herein shall be construed to compel either party to divest himself or herself of the title to real estate" — has no application to community real estate.
The question certified is answered in the affirmative.