Brick & Tile v. Parker
| Decision Date | 14 February 1945 |
| Docket Number | No. A-398.,A-398. |
| Citation | 186 S.W.2d 66 |
| Court | Texas Supreme Court |
| Parties | BRICK & TILE, Inc., v. PARKER et al. |
S. M. Adams, of Nacogdoches, for petitioner.
McAlister & Tucker and R. A. McAlister, all of Nacogdoches, for respondents.
Athens Brick & Tile Company furnished brick to F. K. Parker for the construction of a building on a lot in the city of San Augustine, and in due time its assignee, Brick & Tile, Inc., duly filed its account therefor with the County Clerk for the purpose of fixing the statutory materialman's lien on the lot and improvements as provided for in Revised Statutes, articles 5452 et seq. In a suit by Brick & Tile, Inc., against F. K. Parker and his former wife, Gladys Parker, and Tom Parker, who had purchased the property after lis pendens had been filed, the trial court rendered judgment against F. K. Parker for the debt, but denied a foreclosure of the materialman's lien. The Court of Civil Appeals affirmed the judgment of the trial court. 186 S.W.2d 64.
The Court of Civil Appeals denied foreclosure of the lien on the ground that the lot did not belong to F. K. Parker, but that it belonged to his wife, Gladys Parker, at the time the improvements were made.
The property was purchased during the marriage of F. K. and Gladys Parker. The deed of purchase conveyed the land to Mrs. F. K. Parker, but contained no recital that it was paid for out of her separate funds, nor that it was conveyed to her as her separate property. The material part of the deed was as follows: "For and in consideration of Twelve Hundred Fifty ($1,250.00) Dollars to us in hand paid by Mrs. F. K. Parker, as follows, Twelve Hundred Fifty ($1,250.00) Dollars in cash paid by F. K. Parker, a receipt of which is hereby acknowledged, has granted, sold and conveyed, and by these presents do grant, sell and convey unto the said Mrs. F. K. Parker all that certain tract of land," etc.
Since the property was acquired during the marriage of F. K. Parker and wife, it was presumably their community property, and this presumption prevails even though the deed was taken in the name of the wife, in the absence of language in the deed tending to show that it was purchased with the separate funds of the wife, or that it was conveyed to her as her separate property. Stiles v. Japhet, 84 Tex. 91, 19 S.W. 450; Ross v. Martin, 104 Tex. 558, 140 S.W. 432, 141 S.W. 518; Cooke v. Bremond, 27 Tex. 457, 86 Am. Dec. 626; Speer, Law of Marital Rights, 3d Ed., § 352, p. 428; Connor v. Boyd, Tex.Civ.App., 176 S.W.2d 212.
The deed in this instance recites that the...
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In re A & M Operating Co., Inc.
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