Adam v. Adam, 10828.

• Decision Date: 13 April 1939
• Docket Number: No. 10828.,10828.
• Citation: 127 S.W.2d 1001
• Parties: ADAM v. ADAM et al.
• Court: Texas Court of Appeals

127 S.W.2d 1001

ADAM v. ADAM et al.

No. 10828.

Court of Civil Appeals of Texas. Galveston.

April 13, 1939.

Appeal from District Court, Harris County; Ewing Boyd, Judge.

Action for title and possession of certain property and for partition of other property by Mrs. Bessie W. Adam against Louis L. Adam and others. From a judgment for the defendant, plaintiff appeals.

Reversed and remanded.

Ernest A. Knipp, of Houston, for appellant.

Fitzpatrick & Wells, of Houston, for appellees Louis Lee Adam and wife Doris Adam.

MONTEITH, Chief Justice.

This is an appeal from a judgment of the District Court of Harris County, in an action brought by appellant Bessie W. Adam, plaintiff below, against Louis L. Adam and wife Doris Adam, Rieves A. Adam and Christine Ripka and her husband George Ripka, defendants below, for the title and possession of certain property claimed by appellant as her separate estate and for the partition of other property alleged to be part of the community estate of herself and her deceased husband, L. Lee Adam.

This action was originally brought by appellant against L. Lee Adam in 1932, for divorce and partition of community property. An injunction was issued at the time of the filing of the action restraining the defendant from disposing of any part of the community estate. With the exception of the filing by L. Lee Adam of a formal answer and an inventory and appraisement of the property constituting the community estate, no further action was taken in said original suit until June 11th, 1937, when appellant filed a supplemental petition in which she suggested the death of the defendant, L. Lee Adam, and asked that their surviving children, the above-named defendants, be made parties to said action for the purpose of settling property rights.

By amended petition appellant alleged the ownership as her separate estate of certain property known as Lot No 5, Block No. 4, of the sub-division of 10-acre Lot No. 17, in the J. S. Holman Survey, Harris County, Texas, known as 2819 Hamilton Street, Houston, and that a deed from her deceased husband L. Lee Adam to Louis L. Adam and Doris Adam to property known as Lot 21, Block 1, in William McClintock's Sub-division of the Nathan Fuller Survey in Galveston County, Texas, had been executed and delivered for the purpose of defeating her rights to said property, and in violation of the terms of an injunction theretofore issued in said cause.

Christine Ripka and husband answered by general denial and general demurrer and Louis L. Adam and wife answered by general and special demurrers and by special answer denying appellant's allegations in reference to said Galveston County property. No answer was filed by Rieves A. Adam.

At the conclusion of appellant's evidence, appellees rested their case, offering no testimony in their behalf, and appellant and each of appellees, except the defendant Rieves A. Adam, presented motions for instructed verdicts. The court, on his own motion, struck out the entire testimony of appellant Bessie W. Adam, discharged the jury and rendered judgment against the appellant and in favor of appellees finding in said judgment that both the property known as 2819 Hamilton Street, Houston, and other properties not necessary to be herein mentioned, constituted the community estate of appellant and her deceased husband L. Lee Adam, and that the property known as Lot 21, Block 1, in William McClintock's Sub-division of the Nathan Fuller Survey in Galveston County, Texas, had been conveyed by L. Lee Adam to Louis Lee Adam and that the title to said property was vested in said Louis Lee Adam.

The record discloses that J. R. Waties, the father of appellant, was the owner of the property known as 2819 Hamilton Street, Houston, at the time of his death; that there was an outstanding indebtedness of $2,000, with interest, against said property held by Blake Dupree; that said property was sold by Blake Dupree to L. Lee Adam on May 27th, 1938, for a consideration of $2,750, recited as having been paid by the Real Estate Loan Company of Galveston, Texas, at the request of L. Lee Adam and evidenced by his 92 notes payable to said Real Estate Loan Company, 91 of said notes being for the sum of $40 each and one for the sum of $50. A release, dated April 7th, 1926, recites the payment of all of said notes. Appellant introduced in evidence an instrument dated April 19th, 1918, wherein Blake Dupree agreed, in consideration of the payment to him of $2,496, to convey to Mrs. Lee Adam certain property to be conveyed to him by H. H. Brooks, administrator. Appellant testified, without objection, that the property referred to was the property known as 2819 Hamilton Street, and that said agreement was made in conformity with an agreement between herself and her brother and sister, the sole surviving heirs of their father J. R. Waties, that said property was to be conveyed to her and that said conveyance by Blake Dupree to L. Lee Adam of the property known as 2819 Hamilton street, Houston, was made to L. Lee Adam in trust for her. She further testified that all of said notes were paid by her son Rieves A. Adam to the Real Estate Loan Company for her benefit and as a gift to her from her said son. The record discloses that approximately...