Berdoll v. Berdoll

• Citation: 145 S.W.2d 227
• Decision Date: 06 November 1940
• Docket Number: No. 8971.,8971.
• Parties: BERDOLL v. BERDOLL.
• Court: Texas Court of Appeals

145 S.W.2d 227

BERDOLL v. BERDOLL.

No. 8971.

Court of Civil Appeals of Texas. Austin.

November 6, 1940.

Rehearing Denied November 27, 1940.

Error from District Court, Travis County; J. D. Moore, Judge.

Suit by Annie R. Berdoll against A. J. Berdoll for divorce and to adjudicate the respective property rights of the parties. To review a judgment for plaintiff, the defendant brings error.

Affirmed.

Yelderman & Yelderman, of Austin, for plaintiff in error.

Alfred Petsch, of Fredericksburg, and Hart & Brown, of Austin, for defendant in error.

BLAIR, Justice.

The parties will be designated appellant and appellee.

Appellee, Annie R. Berdoll, sued appellant, A. J. Berdoll, for a divorce and to adjudicate the respective property rights of the parties. Appellee alleged that she owned as her separate property a certain described residence in Austin, and also 117.7 acres of land described, which property she inherited from her father after her marriage to appellant. He answered that these properties were conveyed to himself and appellee jointly, upon an agreement between them that the conveyance should be so made as compensation to him for outlays, expenses, and losses incurred by him out of his separate means in improving other separate property of appellee. She replied that no such agreement was ever made; that she did not authorize the conveyance to her and her husband; that she did not know that the conveyance had been so made until December 3, 1938, which was after this suit was instituted; and prayed that title and possession of the properties be awarded to her as her separate property. The jury found that no such agreement as alleged by appellant was made; and judgment was accordingly rendered awarding the properties to appellee as her separate properties.

For the first time appellant contends on this appeal that the right of appellee to have the conveyance to him set aside and cancelled was barred by the four-year statute of limitation (Article 5529). Not having plead limitation against the cause of action of appellee pertaining to the two pieces of property, appellant waived limitation as a defense, and cannot now be heard to urge same. The law is too well settled to admit of any discussion that "limitation is not available unless it is specifically set forth as a defense, it being firmly settled that the defense is waived if it is not interposed by a demurrer or plea." 28 Tex.Jur. 286-288, and cases there cited.

Shortly before appellant and appellee were married he obtained two life insurance policies, which provided that payment of twenty annual premiums would mature them; and each provided for a cash surrender value. Appellant paid the first premiums due on these policies, and after his marriage appellee was named beneficiary, and after his marriage eighteen more annual premiums were paid, fourteen of which were paid out of the community funds of appellant and appellee; and at the time of the trial these policies had a total cash surrender value of $2,754. Appellee made the insurance company a party to this suit, alleging that under the facts stated she was entitled to receive one-half of fourteen-nineteenths of the cash surrender value of these policies, being $1,013.40, upon the theory that since one-half of fourteen-nineteenths of the annual premiums was paid out of her one-half interest in the community funds, equity and justice required that she should receive at that time one-half of the fourteen-nineteenths of the cash surrender value of the insurance policies. Accordingly, the trial court, after reciting the facts, decreed as follows:

"* * * that plaintiff Annie R. Berdoll owns, as her part of the present cash surrender value of said two policies, fourteen-nineteenths of one-half thereof, or the sum of $1,013.40 of said cash surrender value; that she is entitled to have one of said policies surrendered at this time and to receive, as her separate property, $1,013.40 of the amount paid by said insurance company upon the surrender of such policy; and the court now orders, adjudges, and decrees that said Policy No. 4297-J be surrendered by plaintiff and defendant to said Great Southern Life Insurance Company, and that said insurance company pay to plaintiff Annie R. Berdoll the sum of $1,013.40 and to defendant A. J. Berdoll the balance of the cash surrender value of said policy, and that such surrender of said policy to said insurance company and the payment by said insurance company of said sum of $1,377.00 as the cash surrender value thereof shall cancel and terminate said policy, and that thereafter the same shall not be of any further force and effect, and said Great Southern Life Insurance Company shall not be liable thereon in any further sum in any event; and the court does hereby adjudge and decree to said Annie R. Berdoll, as her separate property, the sum of $1,013.40 of the cash surrender value of said two policies, and adjudges that she may demand and receive same and may execute and deliver all necessary and proper receipts and acquittances therefor, and that she may sell, transfer and assign the same, and that process appropriate to carry into effect this provision of this judgment shall issue herein upon demand of said plaintiff Annie R. Berdoll.

"The court further adjudges and decrees that defendant, A. J. Berdoll, may purchase, and become the owner of, the said interest of $1,013.40 in the cash surrender value of said insurance policies from said plaintiff Annie R. Berdoll, provided he pays said sum in cash to said plain...