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able, it was not error to admit the testimony of a witness that he was in the employ of such former owner when it made an assignment for the benefit of creditors, and that he assisted in preparing a statement of its assets, which statement was intended to be accurate and complete, and that, to the best of his recollection and understanding, the notes were not among such assets, but had been transferred by indorsement to the person through whom plaintiff claimed. [Ed. Note.—For other cases, see Trespass to Try Title, Cent. Dig. § 54; Dec. Dig. 3:39.] 3. TRESPASS TO TRY TITLE &41 — TITLE – TRANSFER OF NOTES—SUFFICIENCY OF EVIDENCE. Evidence in an action of trespass to try title, wherein the question of title depended on whether the former owners of the property had transferred, prior to making an assignment for the benefit of creditors, vendor's lien notes retained by them, held to show that the notes had been transferred. [Ed. Note:—For other cases, see Trespass to # Title, Čent. Dig. §§ 62, 63; Dec. Dig. 8:

.4. VENDOR AND PURCHASER Q->261—LIENASSIGNMENT. Where a deed reserved a vendor's lien securing the purchase-money notes, and a trust deed authorizing appointment of trustee was executed as additional security, the action of the grantor’s successor in interest in the land in appointing a trustee and the sale of the property under the trust deed after the notes had been transferred to a third person was unauthorized and conveyed no title. [Ed. Note.—For other cases, see Vendor and Purchaser, Cent. Dig. §§ 674–686, 688–695; Dec. Dig. 3:261.]

Appeal from District Court, Dallas County; E. B. Muse, Judge.

Trespass to try title by L. W. Campbell, Jr., against I. G. Etheridge and Others. From judgment for plaintiff, defendants appeal. Affirmed.

Etheridge, McCormick & Bromberg, of Dallas, for appellants. Gilbert H. Irish and L. W. Campbell, both of Dallas, for appellee.

RAINEY, C. J. This is an action of trespaSS to try title to recover lots 1 and 2 in block 168, Dallas Land & Loan Company’s addition No. 3 to Oak Cliff, now a part of the city of Dallas. The suit was instituted by appellee, and appellants filed a general denial and plea of not guilty. The cause was tried by the court without the intervention Of a jury, and a judgment Was rendered in favor of appellee, from which this appeal is taken.

[1] Error is assigned to the action of the court in Overruling appellants’ motion for Continuance. The suit was filed in November, 1913. At the December term, 1913, an Order was entered requiring appellee to give a bond for costs. No action to comply with this Order by appellee was taken until the June term, 1914, When the case was called for trial, when the appellee announced ready. Whereupon the appellant moved to

dismiss the case upon the ground that the

rule for CostS had not been complied with. Thereupon the appellee asked leave to be

permitted to comply therewith, which Was granted by the court, and a sufficient bond was then filed. The court declined to dismiSS the CaSe, and appellants then Orally presented their motion for continuance for the want of the testimony of the two HollingSWOrthS, through Whom appellee Claim.S, by whom they could show that said lots had been purchased by them for a consideration in part of deferred payments, Which contract they had abandoned; that it Would COSt Several hundred dollars to procure the testimony of Said parties, one of whom was in Toronto, Canada, and the other in Atlanta, Ga.; that appellants did not wish to incur the expense of procuring Said testimony in View of the uncertainty of appellee making a cost bond. There was no diligence shown to procure Said testimony, and the delay by appellee in Complying With the rule requiring a bond for costs is not a sufficient excuse for want of diligence. Railway Co. v. Styron, 66 Tex. 421; 1 S. W. 161. In the case just cited it was said by Mr. Stayton, J., that: * “The pendency of a contest as to the sufficiency of the affidavit in lieu of a cost bond was no excuse for the failure to use the necessary means to procure the evidence, and, besides, appellant knew that the appellee might comply with the rule for costs at any time by giving the proper cost bond.” The trial court did not err in overruling the motion for continuance. [2, 3] The evidence shows that the two lots. in controversy were on September 22, 1890, deeded to the Hollingsworth Bros. by the Dallas Land & Loan Company, the then owners, the consideration being $150 cash, and four notes executed by said Hollingsworth Bros., one for $100, payable in six months, and three for $250 each, payable, respectively, September 22, 1892, September 22, 1893, and September 22, 1894, said deed containing a reservation of the vendor's lien, and as additional Security a deed of trust was executed to E. L. Snodgrass. The deed was signed by T. L. Marsalis, as president, and E. L. Snodgrass, as secretary, of said company, and the same was duly recorded in 1890. The Hollingsworth Bros. never paid Said notes Or either of them, but abandoned their contract and left the state. On June 9, 1891, the Dallas Land & Loan Company made to C. E. Bird, as assignee, a general assignment for the benefit of creditors. On July 21, 1892, C. E. Bird, assignee, deeded to T. L. MarSalis all Of Said property then held by him. On July 21, 1910, Marsalis deeded to David Scott the land in controverSy. Scott On August 23, 1910, deeded to I. G. Etheridge. Marsalis and Scott on June 2, 1913, conveyed the lien and notes to Etheridge. Snodgrass, as trustee under the HollingSWOrth BrOS. deed of trust, resigned, and Etheridge appointed J. H. Addison as substitute trustee; such substitution being au. thorized by said deed of trust. On July 1, 1913, Addison sold said lots at public Sale, and on July 15, 1913, deeded same to I. G. Etheridge. On May 2, 1912, Hollingsworth BrOS. deeded said lots to J. R. Campbell, and on September 23, 1913, J. R. Campbell deeded to L. W. Campbell, Jr. Appellee also holds a release from George J. Bryan, to whom it is claimed the Hollingsworth Bros. notes Were transferred. AS to Who OWns the better title in this controversy, we think, must be determined from the evidence in relation to what disposition WaS made Of the HollingSWOrth BrOS. notes. There is nothing to show that they were ever paid or in any way settled by the HollingsWorths. The deed from the Dallas Land & LOan Company having reserved a lien on the two lots to secure the payment of the notes, the superior title remained in Said Company, Subject to Said notes being paid or settled by said company disposing Of them to another party. There is evidence to the effect that these lots Were included in another tract traded to One George J. Bryan by the Dallas Land & Loan Company, and in said transaction with Bryan the HollingsWorth notes Were settled. James A. MCAleer, who at that time was a bookkeeper, cashier, and general office man of the Dallas Land & Loan Company, testified as follows:

“I remember the occasion when the Dallas Land St Loan Company made an assignment for the benefit of its creditors. I was in its employ at that time. The schedule of the assets and liabilities of that company was prepared in its office by Mr. E. L. Snodgrass and myself. We prepared it with the intention of having it strictly accurate. E. L. Snodgrass was then the secretary of that company. He lives in Dallas now. He did the principal work of preparing this schedule. I assisted him. I had charge of the notes that belonged to the Dallas Land & Loan Company. I had charge of the cash and the books. I have seen the schedule of the assets and liabilities on one or two occasions on record at the courthouse. I believe this schedule Was accurate, and that it contained all the assets and liabilities of the company. Some seven or eight years ago I had an idea of buying those Hollingsworth notes if I could find the owner, but I could not find the owner. I did not know where he was, and no one seemed to know where he was ; and I went to the courthouse to see if these notes on the lots were listed in the schedule, and whether those notes were shown as standing against the property at the time. £und no record of those notes in the schedule.”

Being asked Whether he was prepared to State Whether he had any recollection. On the Subject Or not aS to Why the notes Were not listed, the Witness responded:

“‘My recollection of the transaction was that that property where the Hollingsworth lots were situated was a part of the acreage conveyed to Geo. J. Bryan, and there was a settlement with Geo. J. Bryan in that sale or purchase with reference to the lots we had sold out of it, and in that settlement I believe that those notes

and the cash received on those lots had been ac-l.

* * *

counted for to him. “As to whether or not there was, in fact, the settlement I have just mentioned between Dallas Land & Loan Company and Geo. J. Bryan on his purchase of that part of the third addition, will say the settle

ment—I saw it being prepared, and it was prepared in writing or in figures. That was a statement made in figures. That statement was made upon the basis of the amount of money coming to the Dallas Land St Loan Company from Geo. J. Bryan. Being asked to state if he remembered just what that statement consisted of, and who prepared it as nearly as he could remember, the witness responded: “My recollection is that the instrument was prepared —the figures were prepared by Bryan T. Barry and T. L. Marsalis, and passed over to me for entry on the books. The statement was made showing the amount of— to show the amount of the balance to be paid by Geo. J. Bryan after he had been given credit on the purchase money for the amount of money and notes on certain lots which had been sold prior to the acreage. As to what became of the Hollingsworth notes, my recollection and understanding was that they Were turned over to Geo. J. Bryan by indorsement. As to what was done with the HollingsWorth notes, my memory at this time would not enable me to swear definitely what was done with them. I have merely stated my recollection as to what was done at the time, and which I believe to be true. That recollection is that . the Hollingsworth notes were turned over to Geo. J. Bryan in a settlement of the account, coming from him to the Dallas Land & Loan Company, and giving him as a credit upon that amount. My recollection is that for six months prior to the time of the assignment made by the Dallas Land & Loan Company, on or about the 1st of January, 1891, that company was insolvent. I can give no reason for that, and it was that the officials of the Dallas Land & Loan Company, the president, had been considering about that time the advisability of making an assignment, and put it off as long as he could. At that time the company was struggling and borrowing money, but I would not say that it was insolvent at the time, but it was in a shaky condition. It was then borrowing money and struggling along. At that time attempts were made to sell land belonging to the company then known as the Midway addition, and now known as Rosemont, Winnetka, and the Annex. There were 300 acres, and a vigorous attempt was made to sell it in order to procure money for the upholding of the business of the Dallas Land & Loan Company. With reference to what the company was doing in the matter of its vendor's lien notes along the same time, will say there was a constant attempt to keep up the sale of the vendor lien notes, which was generally fairly successful until the financial crisis, caused, I believe, by the failure of Baring Bros. about that time, which caused a stringency of money, and it became almost impossible to sell vendor lien notes then.”

This testimony was objected to by the appellants. Under the circumstances of this case, the length of time that had elapsed, etc., the court did not err in admitting the testimony. Taking said testimony as true, With the further testimony that they Were not scheduled in the assignment made by the company for the benefit of creditors, and Were not mentioned or Specified in the deed by the assignee, Bird, conveying the property back to Marsalis, we conclude that said notes had passed out of the possession of said Land & Loan Company.

[4] If said company had disposed of Said notes, the most that can be said of title in them is that it was held in trust for the OWners of said notes, and the transfer of the lien and notes by Marsalis and Scott to Etheridge conveyed no title to the land, or the

notes, and the appointment by Etheridge of Addison as trustee and the sale under the trust deed was unauthorized and conveyed no title to the land. If the Said notes had been transferred to Bryan, as the evidence indicates, under his release in favor of the HollingsWorth Bros. Of his interest therein, as Hollingsworth Bros. deeded to Campbell the lots in controversy, Campbell has the better title, and the trial court did not err in so holding. The judgment is affirmed.

FIRST NAT. BANK OF PLAINVIEW et al. v. McWHORTER et al. (No. 839.)

(Court of Civil Appeals of Texas. Nov. 6, 1915.)

1. HUSBAND AND WIFE Q->257—WIFE'S SEPARATE ESTATE-COMMUNITY PROPERTY. Rev. St. 1911, art. 4621, as amended in 1913 (Acts 33d Leg. c. 32, § 1 [Vernon's Sayles’ Ann. Civ. St. 1914, art. 4621]), providing that all property of either spouse acquired before marriage and afterwards by gift, devise, or descent, as also the increase of all lands so acquired shall be the separate property of the spouses, although the wife shall have the sole management, control, and disposition of her separate property during marriage, provided the husband joins in the manner prescribed by law in the conveyance of her separate real estate, and Rev. St. 1911, art. 4622 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4622), providing that all property acquired by either the husband or wife during marriage, except that which is the separate property of either one or the other, shall be deemed the common property of both, and during coverture be disposed of by the husband only, do not change the rule that property acquired during coverture from the use of the wife's separate property becomes the property of the community. [Ed. Note.—For other cases, see Husband and # Cent. Dig. §§ 543–552; Dec. Dig. G:

Amarillo.

2. FRAUDULENT CONVEYANCES @:137—CON

VEYANCE BY HUSBAND TO WIFE.

Under Vernon’s Sayles’ Ann. Civ. St. 1914,

art. 3968, providing that no gift of any goods or chattels shall be valid unless by deed or will duly acknowledged, or unless actual possession shall have come to and remained with the donee, or some one claiming under him, grass seed raised by a wife upon her separate real estate will not be considered as against the husband's creditors, to have been a gift to her by her husband, where actual possession thereof was not given to the wife.

[Ed. Note.—For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 432–437; Dec. Dig. ce: 137.]

3. TRIAL Q->140–QUESTIONS OF FACT-CREDIBILITY OF WITNESSES. A case wholly dependent upon uncorroborated testimony of a party interested in the litigation, though unopposed by other witnesses, is for the jury, and they have the right to weigh the credibility of the witness. [Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 334, 335; Dec. Dig. 3:140.]

4. EVIDENCE ce:317 – EVIDENCE BASED ON HEARSAY. In trover by a wife for grass seed seized for her husband's debts, evidence by plaintiff as to the value of such seed, based upon information

received by her through others, was inadmissible as hearsay. [Ed. Note-For other cases, see Evidence, Cent. Dig. §§ 1174–1192; Dec. Dig. <=317.] 5. EVIDENCE &a=143 - ADMISSIBILITY – MARKET VALUES. In trover, testimony as to market value of certain grass seed was inadmissible as being too Weak to be considered, where the witness based his estimate on the value of seed, which had passed inspection by a seed association, and the record showed that the seed in question had not gained that standard, and the witness admitted on cross-examination that he was not familiar With the situation at that time, had not known of any sales, and had been too busy to give the matter any thought.

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HENDRICKS, J. In 1913, B. O. McWhorter, the husband of Kate H. McWhorter, was indebted to the appellant the First National Bank of Plainview, as Surety upon two promissory notes, in an amount between $9,000 and $10,000. In September, 1914, the bank sued B. O. McWhorter upon the notes and caused the levy of a writ of attachment upon certain Sudan grass seed. This litigation is an independent suit of the husband, with the wife, Kate H. McWhorter, in trover and conversion for the Value Of the Seed, alleging that it was the separate property of Mrs. McWhorter, and that the same Was not liable for the debtS Of B. O. MCWhorter. The court peremptorily instructed the jury that the seed constituted the separate property of the Wife, leaving the question of Value only for the consideration of the jury, which they assessed at $9,380.25, afterwards reduced by remittitur in the Sum of $1,810.

Both parties treat the real estate upon which the Sudan seed Was raised as the separate property of the wife; and the understanding between the husband and Wife, by virtue of which the latter claims she acquired the Sudan seed as her separate property, is testified to as follows, the substance of which We reproduce:

Mr. McWhorter had a little farm up there... I also had one. He said to me one day, “Mattie, I think I shall rent the farm this year.” I said, “No, that I did not want mine rented, that I might farm my own,” and that I wanted to plant it in Sudan seed. . He agreed to finance it for me, and I told him that I would have the boys (meaning their children) properly work the ground as much as possible, “and agreed to put it in cultivation for my own benefit.” He purchased the seed for planting and I had an agreement that later, when the seed were sold, “I would keep a memorandum of what he was out on the seed and the entire crop and when I sold it I would repay him.” I had a man to plow the land and get it in shape to plant, and my two sons cultivated it. I agreed to pay the older boy $20 per month and the smaller boy $10, to be paid to them when the seed was sold. Mr. McWhorter showed the boys how to manage the crop, and a few times went to the field for that purpose, but never worked the same. When the seed was thrashed, I had it brought to the house, placed in a small garage upon the place; and, when the crop was growing, I had it looked after with a view of having it entered in the Sudan Seed Association, and also had the same inspected by the inspectors at the Experimental Farm, and instructed my son to join the association so that the seed could be sold by it; and after the seed was thrashed, and before I had put it into the association, it was levied upon before the associa: building was ready for the reception of the Seed. The husband did not testify in the case. The appellant bank assigns that the court erred in peremptorily instructing the jury to find that the seed was the separate property of the wife, and under the assignments the following propositions are presented: “The credibility of the witness is a question for the jury, and it was error for the court to assume the truthfulness of plaintiff Kate H. McWhorter's unsupported testimony. * * “The undisputed evidence shows that the said seed were produced by the labors of the husband and wife, and their minor children, and the mere agreement between the husband and wife, before the seed was planted, could not have the effect of changing the law of marital property rights. * * ** [1] At the threshold of the case appellee presents an exposition of the amended acts of 1913 to article 4621, with reference to the rights of married Women, insisting that On account Of the change of the law there is a change of the title of this character of property. Under this act, as formerly, all property, real and personal, of either spouse, acquired before marriage, and afterwards, by gift, devise, or descent, “as also the increase Of all lands thus acquired,” shall be the separate property of the spouses. This amendment does Say: “During marriage * * * the wife shall have the sole management, control and disposition of her separate property, both real and personal,” provided the husband joins in the manner prescribed by law for the conveyance or incumbrance of her separate real estate; “and the joint signature of the husband and wife shall be necessary to a transfer of stocks and bonds belonging to her or of which she may be given control by this act.” It further says: “Neither the separate property of the wife, nor the rents from the wife's separate real estate, nor the interest on bonds and notes belonging to her, nor dividends on stocks owned by her, nor her personal earnings, shall be subject to the payment of debts contracted by the husband.” Article 4622, following 4621, just quoted from, provides, as before, that: “All property acquired by either the husband or wife during marriage, except that which is

the separate property of either one or the other, shall be deemed the common property of the husband and wife, and during coverture may be disposed of by the husband only,” with the addition, “provided, however, the personal earnings. of the wife, and rents from the wife's real estate, the interest on bonds and notes belonging to her and dividends on stocks owned by her shall be under the control, management and disposition of the wife alone, subject to the provisions of article 4621, as hereinabove written.”

Of course, if you start with the assumption that this Statute makes the productS raised upon the Wife's real estate the Separate property of the wife, instead of community property, this CaSe is ended in favor of the Wife; but We are unable to give the statute the interpetation suggested. If it were not for the settled channels of the law, dug deep by successive interpretations heretofore made, the question might at least become debatable. The statute does give the wife the management, Control, and disposition of her real property, provided that the husband, When it comes to the disposition, joins in the Conveyance; and, if he should refuse to join under article 4621, the district court, upon Satisfactory proof that the conveyance WOuld be advantageous to her interest, may grant her the permission to convey. To give the wife the management and control Of the real estate, and not give her the real incidents and fruits Of that control, might, in an ethical sense, appear contradictory; and though it has appeared to a great many in this state that the construction that, although the thing itself may be separate property, but that which grows out of it and is produced upon it and Which makes property really beneficial is community, is an incongruous interpretation; but the Supreme Court of this state has placed the same upon What it has conceived a broader ground, as to the meaning of the Old Statute and the result of the community partnership, and the presumed labors of each between husband and Wife. In the early case of De Blane V. Lynch, 23 Tex. 29, where it was held that crops grown upon the separate property of the wife, and by the labor of her slaves, were community property, the Supreme Court Said:

“The principle which lies at the foundation of the whole system of community property is that whatever is acquired by the joint efforts of the husband and wife shall be their common property. * * It is true that in a particular case satisfactory proof might be made that the wife contributed nothing to the acquisitions; or, on the other hand, that the acquisitions of property were owing wholly to the wife's industry. But from the very nature of the marriage relation the law cannot permit inquiries into such matters. The law therefore conclusively presumes that whatever is acquired, except by gift, devise, or descent, or by the exchange of one kind of property for another kind, is acquired by their mutual industry. If a crop is made by the labor of the wife's slaves, on the wife's land, it is community property, because the law presumes that the husband’s skill or care contributed to its production; or that he, in some other way, contributed to the common acquisitions.”

It may be that on account of the wife's management and control of her separate real estate the presumption that the husband's labor Or Skill contributed to the production of the crops grown thereupon might not preVail, but the presumption that he still contributes to the COmmon acquisitions and the community partnership, in a general sense, of course, prevails, article 4622, as amended by the Legislature of 1913, still says that all property acquired by the husband or Wife during marriage shall be deemed the common property and during the coverture may be disposed of by the husband only; and article 4621, as amended, still prescribes that the property acquired only by gift, devise, or descent, constitutes the separate property of each. Hence the status of the title of the common property, and of the separate property by gift, devise, or descent, we think under this statute continues to remain the Same. It would have been easy for the Legislature to have Said that the “increase” of separate real estate shall include the products grown upon the same without leaving it to a strained construction by the courts to abrogate the settled rule imbedded in the law by many decades of interpretation. The Court Of the Second district has in effect given the amended statute the same interpretation as we give it. Tannehill v. Tannehill, 171 S. W. 1050; Scott v. Scott, 170 S. W. 273. [2] As to the issue Whether the transac, tion constituted a gift, it is the law of this State that the question, whether particular property is separate, or community, must depend upon the existence or nonexistence of the facts, which by the rules of law give character to it, and not merely upon the stipulations of the parties that it shall belong to One class Or the Other. Kellett V. Trice, 95 Tex. 160, 66 S. W. 51. Justice Williams said in that Case:

“It has been held in several cases that the husband and wife cannot, by their mere agreements, alter the character given to property by the law acting upon the facts under which it is acquired. Cox v. Miller, 54 Tex. 27; Green v. Ferguson, 62 Tex. 529.”

He also said:

“It is true that, in the acquisition or afterwards, the husband may give to the wife all his interest in property, and thus, by gift, make it hers; but at last this would be true only because the facts defined in the law exist and the separate right is derived through a gift, the hus'' having full power over the community esate.”

If the products of Mrs. McWhorter's farm are prima facie Community property, the acquisition of title of the husband's half interest must have been a gift, otherwise the title remained in the community; and, if the record in this instance does not conclusively prove a gift, the trial court necessarily erred in his peremptOry instruction. - “No gift of any goods or chattels shall be valid unless by deed or will, duly acknowledged or

session shall have come to, and remained with, the donee or some one claiming under, him.” £ele 3968, Vernon's Sayles’ Rev. Civil StatUlteS. This statute precludes Symbolical Or ConStructive possession; actual possession must come to, and remain with, the donee or some one claiming under him. Love V. Hudson, 24 Tex. Civ. App. 377, 59 S.W. 1127; Eldridge V. McDow, 132 S. W. 518. We are not deciding that acts of control and manifestations of ownership over articles in heavy bulk would not constitute actual possession, if the other elements, intention to give, and relinquishment by the donor of dominion over the property to the donee, are shown. It is elementary that an unexecuted parol promise to give is Void. It is the fact Of delivery and relinQuishment of dominion that converts the unexecuted and revocable purpose to give into a Complete gift. If the products Of the farm, Which are to be severed, constitute the Community property, it cannot be doubted that at least, after Severance, the husband had the management, control, and disposition of such products, and it is equally true that such products would be “chattels” Within the Statute quoted. Hence the intention of the husband to give, and the delivery by him into the actual possession of the Wife, must be conclusively shown to take a case of this character from the jury. In the case of Little v. Birdwell, 21 Tex. 609, 73 Am. Tec. 242, Our Supreme Court, Quoting from the Alabama Supreme Court, Said: “Verbal sales and gifts, between husband and wife, ought not to be admitted, unless on clear and satisfactory proof that the property was divested out of the vendor, and vested in the Vendee.” It may be that the true rule in such cases is that such proof is that character of evidence, which, in order to be conclusive, leaves no room for Ordinary minds to debate as to the inference to be deduced. LOrd V. Insurance Co., 95 Tex. 216, 66 S. W. 290, 56 L. R. A. 596, 93 Am. St. Rep. 827, where a brother gave his sister an insurance policy. The jury in this case would have had the right to weigh the relationship of the parties, the fact that the wife, vitally interested in the litigation, is testifying On the main issue in the Cause, and that the husband’s testimony is neither offered nor its absence excused ; and to further consider whether the arrangement Or agreement testified to by her was merely an attempt to change the status of community into Separate property, Without including the idea of a gift, which would be void under the decisions cited and quoted from. When she informed her husband that if he Would finance the crop and that She WOuld Superintend it, employ the boys to cultivate it, and reimburse him out of the crop, the crop to be hers, We are unable to Say that Such an agreement concluSively exhibits an intention to give—a pi:re

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