Baize v. Baize
| Decision Date | 13 November 1970 |
| Docket Number | No. 4427,4427 |
| Citation | 460 S.W.2d 255 |
| Parties | Spencer BAIZE, Appellant, v. Bobbie BAIZE, Appellee. |
| Court | Texas Court of Appeals |
R. A. Hollabaugh, Andrews & Andrews, Stamford, for appellant.
Davis Scarborough, Scarborough, Black, Tarpley & Scarborough, Bob Surovik, McMahon, Smart, Sprain, Wilson & Camp, Abilene, for appellee.
Spencer Baize has appealed from a divorce judgment contending the court erred in failing to find that a 110 acre tract of land was his separate property. The farm was purchased by him and his wife before they separated for $38,850.00. Appellant's father gave him $3,000.00 to pay on the farm, and loaned him $16,000.00 which was returned to his father by the Federal Land Bank after the parties executed a note to the Bank. $2,121.44 of Community funds, derived from the sale of cattle, was applied on the purchase price. Approximately $20,056.00 from a trust fund which appellant claims as his separate property and some interest from the trust fund was also applied on the purchase price. Mrs. Baize testified to the effect that some of their community funds were deposited in the trust fund. However, we cannot determine from the record what percentage of it is community. The court was correct in holding the land to be in part community and in part the separate property of appellant. In Gleich v. Bongio, 128 Tex. 606, 99 S.W.2d 881, the Commission of Appeals (1937) said: 'It seems to be the rule in some jurisdictions that property purchased partly with community funds and partly with separate funds of one of the spouses falls into the community, but in Texas it has long been established that such an acquisition has the effect of creating a kind of tenancy in common between the separate and community estates, each owning an interest in the proportion that it supplies the consideration.'
By ordering the property sold, the court impliedly held that the property was not susceptible to a division in kind. Selling the land and dividing the proceeds among the joint owners is one of the methods provided for partitioning real estate. In Lewis v. Lewis, Tex.Civ.App., 179 S.W.2d 594 (no writ history), the court said: 'When real estate is partitioned among joint owners, neither party is in law divested of title, but the result is to equitably determine that a designated portion thereof belongs to each.'
The court awarded appellant, as his separate property, 3/38ths of the net sale price of the farm, ordered some community debts paid and the balance to be divided 1/2 to appellant and 1/2 to appellee.
In Ingham v. Ingham, Tex.Civ.App., 240 S.W.2d 409 (Mand.Overr.), the court said: We find that appellant has not discharged his burden of establishing that the court abused his discretion in the division of the property.
Appellant presents eighteen points of error. Six of these points do not cite any authorities in support thereof and we have been unable to find any. They are overruled. St. Paul Mercury Insurance Company v. Sugarland Industries, Inc., Tex.Civ.App., 406 S.W.2d 778 (Writ Ref. n.r.e.).
Atlas Life Insurance Company filed its interpleader petition in which it alleges that it wrote a policy on the life of appellant which had a cash surrender value of $2,732.30; that it received a claim from appellant for its cash surrender value and one from the appellee and one from the Hamlin Bank and prayed that the court determine the ownership and interest of each of the parties.
Appellant contends this is not an interpleader suit because the policy shows the owner to...
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