Beeler v. Beeler, 6575

• Decision Date: 15 November 1962
• Docket Number: No. 6575,6575
• Citation: 363 S.W.2d 305
• Parties: Mabel L. BEELER, Appellant, v. Arthur H. BEELER, Appellee.
• Court: Texas Court of Appeals

Page 305

363 S.W.2d 305

Mabel L. BEELER, Appellant, v. Arthur H. BEELER, Appellee.

No. 6575.

Court of Civil Appeals of Texas, Beaumont.

Nov. 15, 1962.

Rehearing Denied Dec. 12, 1962.

Patterson, McDaniel & Moore, Houston, for appellant.

Garrison, Renfrow, Zeleskey, Cornelius & Rogers, Lufkin, Ross Hightower, Livingston, for appellee.

McNEILL, Justice.

This suit for divorce and partition of community property was instituted by appellee against appellant. Appellant filed her cross action seeking divorce against appellee and for partition or other disposition of the property of the parties 'according to the court's instructions.' By supplemental petition, appellee alleged that certain real and personal property was his in his separate right and prayed that it be set aside to him.

The cause was tried by the court and judgment was rendered granting appellant a divorce and partitioning certain personal community property. The court also awarded to appellee, as his separate property, the home of the parties consisting of about 18 acres of land and dwelling thereon near Livingston in Polk County, and a vendor's lien note representing the balance owing on the sale of appellee's 425 acre ranch in Austin County.

Appellant asserts that the trial court erred in holding that the homestead of the parties was appellee's separate property, and in holding that the balance owing on the vendor's lien note on the 425 acre tract was his separate property.

The facts as to these two items of property follow. The parties married in 1956. At this time appellee owned the 425 acre ranch and a small herd of cattle thereon. They lived on this ranch from time of marriage for about 17 months. On September 12, 1957, this ranch was sold by the parties to W. O. Huggins, Jr. for $50,000.00, of which sum $16,275.00 was cash and the balance of $33,725.00 was represented by a vendor's lien note, payable in 10 yearly installments, the first of which became due September 12, 1958. This note bears interest at the rate of 5% per annum payable annually in addition to principal installment. Included in the sale was the herd of cattle.

Appellant claims that in the first 17 months of their marriage calves were born to the cows in the herd on the ranch and that improvements were made upon the place and, therefore, the note was their community property. The trial court filed findings of fact and among these was the finding that a few calves were born to the cows owned by appellee prior to the marriage, but the exact number and approximate value at the time of sale of the ranch was not established in the evidence. He further found that no material improvements were placed upon the ranch which enhanced the value of the property, and that the improvements were in the nature of general maintenance. In view of these findings, we hold the trial court was correct in awarding appellee the vendor's lien note upon the ground that it was his separate property. Norris v. Vaughan, 152 Tex. 491, 260 S.W.2d 676.

Upon the day that the ranch was sold and the note above described executed, appellee obtained a loan in the amount of $15,000 from the Austin County State Bank. This loan was represented by a note executed by appellee and appellant, and was payable to the bank in six annual installments of $2,500.00 each which would make the installments fall due on the same day and month of each year for six years as the installments on the vendor's lien note for the sale of the ranch fell due. It was shown that the bank required appellant's signature on the note and that the Huggins vendor's lien note was assigned by appellee to the bank as collateral security for the payment of the $15,000 note.

With $9,000.00 of the $16,275.00 cash consideration paid appellee for the farm, and the $15,000 borrowed from the bank, the home consisting of some 18 acres of land near Livingston was bought by appellee and appellant. The deed recited a cash consideration paid by them and was made to them as grantees.

Since this 18 acre tract was conveyed to the parties during marriage, it is presumptively community property. However, $9,000.00 of the consideration paid for the property was appellee's separate property. His separate estate, therefore, owns a 9/24th interest therein. Appellant insists that at least 15/24ths of the purchase price of the Polk County home is community property. This, because her signature was required on the note and because there was no agreement existing between the Austin County Bank and the makers of the note that the money loaned was to be the separate property of appellee, and that the bank would look to appellee's separate estate for payment of the note. The trial court has found that while the community estate was secondarily liable for payment of the note, there was no reasonable possibility that a resort to the community estate of the parties would ever have been necessary to obtain repayment of the loan. We hold that this is not equivalent to the requirement that in order that the title represented by the money borrowed from the bank would constitute the separate estate of appellee, that it was agreed at the time that such title would be his separate property, and that the bank would look only to his separate estate for satisfaction of the deferred payments. This is the test, as we understand it, set out in Gleich v. Bongio, 128 Tex. 606, 99 S.W.2d 881. To the same effect is Solether v. Trinity Fire Ins. Co., 124 Tex. 363, 78 S.W.2d 180.

Appellee relies upon Sparks v. Taylor, 99 Tex. 411, 90 S.W. 485, 6 L.R.A., N.S., 381, to sustain the trial court's finding and conclusion of law that the full title to the 18 acre homestead was appellee's spearate property. He says that the Gleich and Solether cases involved third-party creditors and the reason for the rule as stated in them is to prevent a fraud on creditors by an alleged agreement between spouses. Those cases did involve rights of creditors in connection with the affairs of the marital partnership. However, Goodloe v. Williams, Tex.Civ.App., 302 S.W.2d 235 (W.R.), was a case between the heirs of the husband and wife and did in no sense...