Dority v. Dority

• Decision Date: 24 October 1902
• Citation: 70 S.W. 338
• Parties: DORITY et al. v. DORITY et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

70 S.W. 338

DORITY et al. v. DORITY et al.^*

Court of Civil Appeals of Texas.

October 24, 1902.

Appeal from district court, Nueces county; Stanley Welch, Judge.

Action by Helen Dority against B. P. Dority and others. From a judgment for plaintiff, certain defendants appeal. Affirmed in part and reversed in part.

G. R. Scott, for appellants. McCampbells & Stoyton and J. C. Scott, for appellees.

GARRETT, C. J.

This action was brought by the appellee Helen Dority in the district court of Nueces county against her husband, the appellant B. P. Dority, and the appellants James W. Durst and R. P. Clarkson, and against A. A. Thompson, who has not appealed, for the cancellation of certain leases of land, the appellee Helen Dority's separate property, made by the husband, B. P. Dority, and to enjoin him from interfering with her separate estate, and to recover of the lessees the rental value of the land. There was a trial by the court without a jury, which resulted in a judgment in favor of the plaintiff as prayed for. All of the defendants have appealed except Thompson.

B. P. Dority and Helen Dority became husband and wife September 13, 1873, and continued to live together as such until October 26, 1899, when she refused to live with him any longer as his wife. After that time they conducted separate households in the same homestead until January, 1901, when the defendant B. P. Dority left the plaintiff in possession of the homestead, and went to Mexico. He returned in May, 1901, and offered to resume marital relations with the plaintiff, but she refused, stating that she would have nothing to do with him. He then left her in sole possession of the homestead, and they have lived apart ever since. The homestead, as well as the other real estate described in the petition, and known as the "Dority Ranch," and the town lots, belong to the plaintiff as her separate property. In addition to this, she owned in her separate right the personal property adjudged to her. Since October 26, 1899, when their marital relations ceased, the defendant B. P. Dority has contributed nothing to the support of the plaintiff, and although he has at all times had control of her separate property, and leased the same, he failed to pay the taxes thereon, or to give her any of the proceeds thereof. The trial judge found from the evidence—which fully sustained the finding—that there is no reasonable expectation or possibility that the plaintiff and her husband would ever resume their marital relations, and that their separation was complete and final. November 10, 1899, the plaintiff brought a suit against B. P. Dority in the district court of Nueces county for divorce, alleging cruel treatment, excesses, and outrages on his part toward her of such a nature as to render their further living together insupportable, and in that suit sought to have her separate property set apart to her, and a division of the community property. On the verdict of a jury the divorce was granted, and appellee's separate estate was set apart to her, and a division of the community property made by agreement, subject to the result of an appeal. The appeal resulted in the reversal of the judgment granting the divorce, and the plaintiff thereafter, May 16, 1901, dismissed her suit. This suit was instituted June 11, 1901. The defendant B. P. Dority is a strong, healthy man, a wheelwright by trade, but had for 10 years had no employment, except odd jobs, at his trade. He has no separate estate, and the only property that he has any interest in is the homestead in the possession of the plaintiff and certain household and kitchen furniture, their community property. But at the trial below he withdrew all demand for affirmative relief as to any division or equitable disposition as to the homestead and the personal effects contained therein belonging to the community. The plaintiff Helen Dority is a frail and delicate woman, 44 years of age, and is subject to spells of serious illness. She supports herself by her own labor in milking and keeping a dairy, with cows her separate property, earning thereby about $30 a month. This she has done for the past 10 years, and the defendant B. P. Dority has during that time contributed nothing to her support, except furnishing groceries; but for two years before the trial he had furnished nothing at all, and in no manner contributed anything to her support either by supplies, labor, or otherwise. She had received nothing from the rents of her property, and out of her personal earnings had paid the taxes thereon within the last two years for 1898, 1899, and 1900. The defendant B. P. Dority failed to pay the taxes upon the plaintiff's property. He declared that he was unable to do so, and allowed it to be advertised for sale for the delinquent taxes of 1898. In order to raise the money to pay the taxes and prevent a sale of her land, and to furnish herself means of support, the plaintiff, without joinder of her husband, contracted to lease the ranch to one H. H. Keys at a rental of $200 per annum. The defendant B. P. Dority repudiated the lease, and prevented Keys from taking possession of the land. It was then the plaintiff refused to live with him any longer.

By a written instrument dated October 23, 1899, but executed five days after the plaintiff told the defendant B. P. Dority that she would no longer live with him as his wife, the said B. P. Dority, without the knowledge or consent of the plaintiff or her joining him therein, undertook to lease the Dority ranch to the defendant James W. Durst for a term of one year, with privilege of a renewal of the lease at the end of that time for two years. The consideration was a rental of $10 a month, and the privilege to said B. P. Dority to pasture therein about 90 head of horses, the separate property of said B. P. Dority, and 15 or 20 head of cattle, the community property of himself and wife. There was no provision in said lease for a subletting. The defendant Dority sold his horses to Durst, and also sold the cattle, and paid no part of the proceeds to the plaintiff. Durst held possession under this lease until December 17, 1900, when, with the consent of defendant, he sublet by verbal lease to A. A. Thompson for an unexpired term of three years, or until October 23, 1902, at a rental of $20 a month in money and improvements to the value of $5 a month. Durst paid on this lease to the defendant Dority $150, no part of which was paid to the plaintiff, but was applied by the said Dority to his attorney fees and other expenses in the divorce suit and other litigation between the plaintiff and himself. Having been notified by plaintiff not to pay rents to the defendant Dority. Thompson has held the rents due by him subject to the issue of this suit, except $80, which was paid to the defendant Dority during the pendency of the divorce suit, and applied by him to his own use. By the terms of the lease from Durst to Thompson, the latter was to recognize Durst as his landlord, but the rent was to be paid to the defendant Dority. This lease was also made without the knowledge or consent of the plaintiff, and during the pendency of the suit for divorce. The defendant Thompson had held possession of the land ever since the date of his lease, and has placed improvements thereon amounting to $120 in value. On May 21, 1901, the defendant Dority, without the knowledge or consent of the plaintiff, or her joining therein, executed a written instrument, by which he undertook to lease to the defendant R. P. Clarkson the Dority ranch for a term of ten years from that date, with the privilege of renewal at the end of that period for the term of five years, for a rental of $25 a month, to be paid monthly in advance to the said B. P. Dority, with the verbal understanding that possession was not to be taken under said lease until the expiration of the lease to Thompson, without an agreement with him. No possession has yet been taken by Clarkson under this lease. The lease contained a clause that the lessee Clarkson should pay all expenses and costs of litigation incurred in resisting the attempt of any person to recover possession of the land, to be reimbursed by the rents as they fell due. The Dority ranch is of the reasonable rental value of $25 a month. The town lots are unproductive, and yield no revenue, except that the homestead is occupied by the plaintiff. The defendant Dority assigned the leases to his attorneys to pay his attorney fees and personal debts of over $650, and to pay a note for money obtained to defend a suit involving the title to the land. The title of the plaintiff was of record, and the several defendant lessees knew of her separate ownership of the property.

The trial judge concluded that the several leases of the plaintiff's ranch were a legal fraud upon the rights of the plaintiff, and that they should be set aside and canceled. We think the facts justify this conclusion. Appellant Dority's first assignment of error is addressed to the overruling of his general demurrer. The facts alleged show that the parties were living separately and apart, and that the husband was refusing to contribute anything to the wife's support, and had fraudulently endeavored to alienate her separate land by long terms of lease, and was depriving her of all use thereof, and appropriating to his own use the rents thereof, while she was required by her own personal labor to earn money and pay the taxes against the land, which he had allowed to become delinquent, and for which a sale had been advertised and was threatened. While the facts causing the separation may not have been sufficient to entitle the plaintiff to a divorce, and while the fault of the separation may...