Bettis v. Bettis, 3188.

• Decision Date: 09 May 1935
• Docket Number: No. 3188.,3188.
• Citation: 83 S.W.2d 1076
• Parties: BETTIS v. BETTIS.
• Court: Texas Court of Appeals

83 S.W.2d 1076

BETTIS v. BETTIS.

No. 3188.

Court of Civil Appeals of Texas. El Paso.

May 9, 1935.

Rehearing Denied May 30, 1935.

Appeal from District Court, Pecos County; C. R. Sutton, Judge.

Suit by Maxine E. Bettis against B. H. Bettis and others. Judgment for plaintiff, and B. H. Bettis appealed.

Affirmed.

Silliman, Johnson & Crumpton, of Fort Stockton, for appellant.

Roy R. Priest, of Rankin, and Kerr & Gayer, of San Angelo, for appellee.

PELPHREY, Chief Justice.

Appellee filed this suit against B. H., L. W., and Elmo Bettis. B. H. and L. W. Bettis resided in Brown county, Tex., while Elmo was a resident of Pecos county. L. W. Bettis is the husband of appellee, but is named as defendant in the suit. The suit was to recover certain real property and improvements thereon located in Pecos county; for rents alleged to be due her for the use thereof; and for a partition of an alleged partnership in a store building at Iraan, Tex.

Appellee alleged that she had requested her husband on numerous occasions to join her in the prosecution of the suit, but that he had refused; that she and her husband purchased lot 15 in block 11, in the town of Iraan, together with the improvements thereon, consisting of a 1-story business building and residence, all being under one roof; that said property was the community property of herself and husband and constituted the family homestead; that on or about the 24th day of February, 1930, the defendants unlawfully entered upon and dispossessed her of said property, and thereafter withheld same from her; that they retained such unlawful possession for 48 months, and that the reasonable rental value of the premises was $50 per month, for which she sued; that on or about the date alleged they unlawfully conspired to defraud her out of her rights in the aforesaid property, and that in pursuance of such conspiracy they made certain false and fraudulent representations to her to induce her to execute a deed to the property in question to B. H. Bettis; that relying upon such representations she did execute such deed which it was agreed should not be recorded, and which deed she never acknowledged as provided by law.

She further sought to recover an interest in a stock of goods alleged to belong to a partnership of which she was a member.

Defendants answered by a plea in abatement, general exception, specially excepted to appellee's petition because it did not contain an allegation that she was separated from her husband; that he had abandoned her, or that she was entitled to the sole possession and control of the property, generally denied the allegations of the petition; specially denied the allegations as to partnership; pleaded not guilty to the allegations of trespass to try title, and specially pleaded the 2, 3 and 4 year statutes of limitations.

In response to special issues submitted, the jury found that: (1) Appellee had requested her husband to join her in the suit; (2) that Elmo and L. W. Bettis procured appellee's signature to the deed upon false and fraudulent representations as to its purpose; (3) that appellee did not acknowledge the deed before the notary; (4) that it was understood and agreed between appellee and Elmo and L. W. Bettis that the deed should remain in the safe unrecorded; and (5) that the rental value of the property was $50 per month.

Judgment was rendered that appellee take nothing as to the stock of goods; that she recover of and from B. H. Bettis all of the real estate, together with the sum of $1,200 as rent; and that the deed executed by her and her husband to B. H. Bettis be canceled. B. H. Bettis only has appealed.

Opinion.

The errors presented by appellant are: (1) That the court erred in overruling their plea in abatement and special exception; (2) that the court erred in permitting appellee's counsel to make the statement to the jury that there was a conspiracy between the three defendants to rob appellee and her baby of their home, and that L. W. Bettis had not attempted to provide for his wife and child; (3) that the court erred in rendering judgment for the $1,200 as rent, there being no evidence to support such judgment or to warrant the submission of an issue thereon; (4) that the court erred in rendering judgment for appellee, the evidence being insufficient to overcome the recitals in the notary's certificate to the deed from appellee and her husband to B. H. Bettis; and (5) that the court erred in permitting appellee to testify as to the rental value of the property.

The plea in abatement and special exception based upon the fact that appellee was a married woman and that her husband was not joined with her in the suit as plaintiff were properly overruled.

A wife can sue her...