Brokaw v. Collett

• Decision Date: 25 January 1928
• Docket Number: (Nos. 1034-4939.)
• Citation: 1 S.W.2d 1090
• Parties: BROKAW et al. v. COLLETT et al.
• Court: Texas Supreme Court

Page 1090

1 S.W.2d 1090

BROKAW et al. v. COLLETT et al.

(Nos. 1034-4939.)

Commission of Appeals of Texas, Section A.

January 25, 1928.

Error to Court of Civil Appeals of Third Supreme Judicial District.

Suit by Charles Brokaw and others in the county court against A. F. Collett, in which H. C. Collett and others filed claim to attached property. Judgment for plaintiffs against A. F. Collett. Judgment in trial of right of property in attachment suit in the district court for plaintiffs was on claimants' appeal reversed and rendered for claimants (296 S. W. 333), and plaintiffs bring error. Judgment of the Court of Civil Appeals reversed, judgment of the district court affirmed.

S. C. Autry, of San Angelo, J. Lloyd Kerr, of Austin, and J. A. Thomas, of San Angelo, for plaintiffs in error.

Collins, Jackson & Sedberry, of San Angelo, for defendants in error.

CRITZ, J.

On August 12, 1919, the sheriff of Tom Green county, Tex., acting under writ of attachment issued out of the county court of said county in the case of Brokaw v. A. F. Collett, attached an undivided one-half interest in certain growing crops, consisting of cotton, cane, maize, and feterita, less certain rents due the landlord, situated on certain lands in said county, which, under the facts and findings of the jury in the case at bar, constituted the homestead of said A. F. Collett and his wife, Mrs. Iona Collett. On August 14, 1919, H. C. Collett, Mrs. Iona Collett, and L. G. Collett filed statutory claimants' oath and bond, as provided for under title 125, Revised Civil Statutes of Texas 1925. In the affidavit said H. C., L. G., and Mrs. Iona Collett stated as a fact, and made oath, that they claimed the following described personal property, describing the property above. At the same time they tendered a claimants' bond, which stated that "the sheriff of Tom Green county, Tex., has seized and taken the following described personal property, to wit," describing the above crops.

The case was docketed under the claimants' oath and bond in the district court of Tom Green county, Tex., that court having jurisdiction on account of the amount involved, and, under direction of the court, and as required by law, issues were made up between the parties.

The claimants set forth the nature of their claim, declaring that they had rented the lands where the attached crops were growing, for the year 1919 from Sheridan for the customary third and fourth, under agreement whereby one-half of the crop would belong to H. C. Collett, the remainder, after deducting rents, to be divided equally between Mrs. Iona Collett and L. G. Collett; that A. F. Collett, husband of Mrs. Iona Collett, and father of the other two claimants, had consented to such rental contract and agreement, the crops to be divided between his wife and sons as they might elect, her part to be her separate property; that the crops were growing on the homestead of the claimants, and were not subject to levy at the time the sheriff attempted to fix an attachment lien thereon. They prayed that the plaintiffs take nothing, and that they have judgment for the property and $500 damages.

For answer Brokaw et al., plaintiffs in the county court case, interposed a general denial, and declared that on the 12th of August, 1919, they had procured writ of attachment from the county court, which has been levied on the property described in the claimant's oath and bond; that the property belonged to A. F. Collett, and not to the claimants; that they recovered judgment against A. F. Collett for $855.54 in the county court case, with foreclosure of attachment lien on the property taken over by the claimants under a $700 valuation; that the agreement for Iona Collett to own whatever she made on the Sheridan place was an attempt to change the status of community property by an agreement made in advance, and therefore void, was without consideration, in violation of the statute of frauds, constituted a fraudulent conveyance under the Texas statutes, and sought judgment against the claimants and Thornton, Reed & Reed, signers of the claimant's bond.

A. F. Collett intervened in the cause, and adopted the plea of the claimants.

The court submitted the case to the jury on special issues.

In the first, the inquiry was made as to whether or not, at the time the attachment writ was levied, Mrs. Collett's homestead was on the Sheridan place, where the crops were located, to which the jury answered "Yes." and, in answer to special issue No. 4, found that Luther Collett had no interest in the crops, but failed to answer the several inquiries as to (a) what interest, if any, Mrs. Collett had in the crops at the time of the levy; (b) what interest, if any, A. F. Collett had in the crops at the time of the levy; (c) whether A. F. Collett had an agreement with H. C. Collett to the effect that the former would furnish teams and tools and the latter pay the expenses of the crop, cultivate the same, the crops to be divided equally after payment of rents; (d) whether there was an agreement between A. F. Collett, H. C. Collett, and Mrs. Iona Collett, acting for herself and Luther Collett, to the effect that Mrs. Collett and her sons might rent the Sheridan place and make a crop during the year 1919, and own, as her separate property, whatever she might make from the crops, and if it were so rented.

The claimants filed motion for an instructed verdict, on the jury's finding to the effect that the homestead of Mrs. Iona Collett was located on the premises at the time the levy was made, which motion was overruled.

The court thereafter, on motion by plaintiffs, entered judgment for Brokaw et al., against the claimants and their bondsmen for $700, basing it on the verdict of the jury and the undisputed facts, as suggested in the judgment.

In an opinion filed May 19, 1927, the Court of Civil Appeals for the Third Supreme Judicial District reversed and rendered the judgment of the trial court. 296 S. W. 333. The case is now before this court on writ of error granted on application of Charles Brokaw et al.

As shown by the record, neither party objected to the court receiving the verdict of the jury in the form returned, and both parties made a motion for judgment on the verdict.

In our opinion, the undisputed evidence renders the property levied upon the community property of Mrs. Iona Collett and her husband, A. F. Collett. A husband and wife do not have the power to change, by mere agreement, made in advance, the status of community property yet to be acquired, and yet to come into existence, to that of the wife's separate property. Article 16, § 15, Constitution of Texas; Arnold v. Leonard, 114 Tex. 535, 273 S. W. 799; Kellett v. Trice, 95 Tex. 160, 66 S. W. 51; Armstrong v. Turbeville (Tex. Civ. App.) 216 S. W. 1101; McDonald v. Stevenson (Tex. Civ. App.) 245 S. W. 777; Cox v. Miller, 54 Tex. 16; Green v. Ferguson, 62 Tex. 529; Speer's Law of Marital Rights, § 297; and 31 C. J. 73. It does not lie in the power of the husband and wife by contract...