Amarillo Nat. Bank v. Liston
| Decision Date | 23 November 1970 |
| Docket Number | No. 8084,8084 |
| Citation | 464 S.W.2d 395 |
| Parties | AMARILLO NATIONAL BANK and Caprock Leasing Company, Appellants, v. Jack D. LISTON et ux., et al., Appellees. |
| Court | Texas Court of Appeals |
Culton, Morgan, Britain & White and Neal R. Allen, Amarillo, John B. Connally and Harry M. Reasoner, Vinson, Elkins, Searls & Connally, Houston, Underwood, Wilson, Sutton, Heare & Berry and Jerome W. Johnson, Amarillo, for appellants.
Folley, Snodgrass & Calhoun, Roy C. Snodgrass, Jr., Monning & Hazlewood, Jack Hazlewood, Gibson, Ochsner, Adkins, Harlan & Hankins, Wayne P. Sturdivant, Sanders, Miller & Baker, Lon Moser, Robert Sanders, Amarillo, for appellees.
This appeal involves eleven consolidated suits by the Amarillo National Bank and Caprock Leasing Co., judgment creditors of Jack D. Liston, whereby they have sought to satisfy their judgment from the community assets of Jack D. Liston and his wife, Bonne Whittenburg Liston. The Amarillo National Bank's judgment here sought to be collected is for the sum of $190,896.51 plus interest from June 9, 1967, the date the judgment was obtained, and Caprock Leasing Co.'s judgment is for $83,510.52 plus interest from date of judgment December 1, 1967. Mrs. Liston was not a party to either of the suits where said judgments were received against Jack D. Liston. The Amarillo National Bank and Caprock Leasing Co. will hereafter be referred to as appellants and all other parties as appellees.
It was appellees' contention that there was no community property owned by Jack D. Liston and wife, Bonne Liston, because of a certain instrument dated August 2, 1960, captioned In Contemplation of Divorce and Permanent Separation. Said agreement was as follows:
'THE STATE OF TEXAS
This contract and agreement made and entered into this the 2nd day of August, 1960, by and between JACK D. LISTON, hereinafter referred to as First Party, and BONNE W. LISTON, hereinafter referred to as Second Party, husband and wife:
WITNESSETH:
'WHEREAS, the parties hereto are now husband and wife, and unhappy differences have arisen and do now exist between them, the result of which is that said parties have lived separate and apart since the 14th day of June, 1960, and have become definitely and finally convinced that it will be impossible for them, now or hereafter, to live together as husband and wife, and they contemplate that a divorce proceeding will be commenced in the near future; and
'WHEREAS, the parties hereto desire to settle all questions as to their respective property rights between themselves, and have been fully and independently advised by their respective counsel in regard thereto.
'NOW, THEREFORE, in consideration of the mutual covenants each to the other running, the parties hereto have agreed and do hereby agree as follows:
I.
'There is no community property belonging to them, except possibly some of those items of property described in Exhibit 'A' hereto attached and made a part hereof; that all other community property and funds received by the parties hereto during their married life, with exception above mentioned, have been consumed in their living expenses during such time.
II.
'All of the property of every kind and character and wheresoever situated, except for those items of property described in Exhibit 'A' hereto attached, standing in the name of either of the parties hereto or in both of their names, and all rights to any property that may have accrued during said marriage, and any equitable title to property, the legal title to which may be in others than First Party and Second Party, is the separate property of Second Party.
III.
'Second Party hereby agrees to assume all of the indebtedness due and owing to the Amarillo National Bank of Amarillo, Texas, which are evidenced by notes and other written obligations payable to said bank and are signed by the parties hereto or either of them.
IV.
'First Party shall hereafter have and own, as his separate property, those items of property set forth and described in Exhibit 'A' hereto attached. Second Party agrees to execute all assignments, bills of sale, or other instruments necessary to give First Party good title to the property described in this paragraph as belonging to him.
V.
'This contract is made in contemplation of divorce and permanent separation; however, it is agreed that this property settlement shall be binding upon the parties hereto even though no divorce is ever applied for or granted to either party hereto.
VI.
'First Party, the said Jack D. Liston, for and in consideration of TEN DOLLARS ($10.00) and the other consideration herein expressed, the receipt of which is hereby acknowledged, grants, sells, conveys, transfers and assigns to the Second Party the said Bonne W. Liston, all of the property of every kind and character and wheresoever situated, real, personal and mixed, tangible and intangible, subject to the exception herein described below, standing in the name of either of the parties hereto or in their joint names, and all rights to any property that may have accrued to either of them during said marriage, and the equitable title to all property, if any, the legal title to which may be in others than the parties hereto.
'There is, however, excepted and reserved from this conveyance and transfer all of those items of property set forth in Exhibit 'A' hereto attached. It is hereby intended that this instrument shall be a present conveyance of the title to Second Party of all such property described in the preceding paragraph as belonging to Second Party; however, First Party hereby agrees that if requested to do so by Second Party, for title purposes, he will execute deeds, bills of sale, transfers, assignments, releases and other instruments covering specifically described properties.
'EXECUTED this the 2nd day of August, 1960.
S/ Jack D. Liston
JACK D. LISTON, First Party
S/ Bonne W. Liston
BONNE W. LISTON, Second Party
'The STATE OF TEXAS
BEFORE ME, the undersigned, a Notary Public in and for said County, Texas, on this day personally appeared JACK D. LISTON, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same for the purposes and consideration therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this 2nd day of August, 1960.
Notary Public in and for Potter County, Texas
'The STATE OF TEXAS
BEFORE ME, the undersigned, a Notary Public in and for said County, Texas, on this day personally appeared BONNE W. LISTON, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that she executed the same for the purposes and consideration therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this 2nd day of August, 1960.
Notary Public in and for Potter County, Texas
EXHIBIT 'A'
'1. Personal Clothing
2. Personal Effects
3. Beechcraft Aircraft 'G'
4. Oldsmobile 58'
In Paragraph 3 of the agreement, Mrs. Liston assumed all of the indebtedness due and owing to the Amarillo National Bank evidenced by notes or other written obligations signed by Mr. and Mrs. Liston or either of them. Such provision would not be enforceable as against Mrs. Liston. During marriage the wife cannot make an enforceable agreement to assume primary liability for debts of the community even as between the husband and wife. Manning v. Benham, 359 S.W.2d 927 (ref. n.r.e.) and Taylor v. Hollingsworth, 142 Tex. 158, 176 S.W.2d 733.
This agreement was never filed for record, and on the same day the agreement was executed, Jack Liston executed four vendor's lien note assignments and two warranty deeds in favor of Boone W. Liston but these assignments and deeds were never filed for record until several years afterwards.
The case was submitted to a jury upon 79 special issues. The verdict of the jury was received and filed with the district clerk on August 7, 1969. On September 30, 1969, the court entered judgment decreeing that the appellants recover nothing as against the named defendants and garnishees except as to the judgment for appellant, Caprock Leasing Co., against Hallmark Aviation, Inc. The judgment for Caprock Leasing Co. against Hallmark Aviation, Inc. is not involved here. The judgment decreed that the agreement between the Listons was valid and binding as to all parties, and that all the property involved was the separate property of Mrs. Liston. The judgment, therefore, was based upon the agreement, supra, in determining that all of the property involved in this litigation was the separate property of Bonne W. Liston, and there was no community property subject to the debts of Jack D. Liston. It is appellants' contention that the agreement is of no force and effect as to them, and that the agreement did not make the community property the separate property of Mrs. Liston because the agreement was in conflict with the Texas Constitution Art. 16, Sec. 15, Vernon's Ann.St. and Art. 4624a, Vernon's Ann. Texas Civil Statutes, and that the findings of the jury showed certain property to be community.
Art. 16, Sec. 15 of the Texas Constitution provides in part as follows: 'All property, both real and personal, of the wife, owned or claimed by her before marriage, and that acquired afterward by gift, devise or descent, shall be the separate property of the wife.' The article also provides: 'This Amendment is self-operative, but laws may be passed prescribing requirements as to the form and manner of execution of such instruments, and providing for their recordation, and for such other reasonable requirements not inconsistent herewith as the Legislature may from time to time consider proper with relation to the subject of this Amendment.' The Legislature passed Art....
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