Callaway v. Clark

• Decision Date: 26 February 1947
• Docket Number: No. 6266.,6266.
• Citation: 200 S.W.2d 447
• Parties: CALLAWAY et al. v. CLARK et al.
• Court: Texas Court of Appeals

200 S.W.2d 447

CALLAWAY et al. v. CLARK et al.

No. 6266.

Court of Civil Appeals of Texas. Texarkana.

February 26, 1947.

Rehearing Denied March 6, 1947.

Appeal from District Court, Cass County; Robert S. Vance, Judge.

Action in trespass to try title by Clemmie R. Callaway and others against Mrs. Gladys Clark and others concerning title and possession of certain lots upon which is located a dwelling house, wherein the defendants prayed that the property be sold and the proceeds to be divided one-half to plaintiffs and one-half to defendants. From a judgment for defendants, the plaintiffs appeal.

Affirmed.

S. I. Cornett, of Linden, and Conly K. Stevens, of Dallas, for appellants.

B. F. Whitworth, of Houston, for appellees.

HALL, Chief Justice.

This is an action in trespass to try title brought by appellants against appellees and concerns the title and possession of certain lots in Hughes Springs, Cass County, Texas, upon which is located a dwelling house.

Appellees' amended answer upon which they went to trial averred that the lots were community property of their father, T. R. Harkrider, and their stepmother, Mrs. Lillie B. Harkrider, and that said lots and house were incapable of partition. Appellees prayed that the property be sold and after payment of all costs and expenses of said sale the balance to be divided one-half to appellants and one-half to appellees.

The trial was to a jury upon the following special issue: "Do you find from a preponderance of the evidence that the property in question in this case was paid for by the separate funds of Mrs. Lillie B. Harkrider, wife of T. R. Harkrider?" to which the jury answered "No." Judgment was entered in the court below ordering the property sold and after costs and expenses were paid the proceeds to be divided one-half to appellants and one-half to appellees.

Appellants' first two points assert that the trial court erred in overruling their motion non obstante veredicto for the reason the undisputed evidence shows that the title to the house and lots vested in their ancestor, Mrs. Lillie B. Harkrider, since the evidence shows without contradiction that the lots were paid for by a check drawn by Mrs. Lillie B. Harkrider on funds standing in her name in the First National Bank of Hughes Springs.

Appellants are the children of Mrs. Lillie B. Harkrider by a former marriage with Bradford Stevens, and appellees are the children of T. R. Harkrider by a former marriage. T. R. Harkrider and Lillie B. (Stevens Waldon) were married November 22, 1919; Mrs. Harkrider died August 11, 1940, and T. R. Harkrider died February 16, 1941. The house and lots here in controversy were conveyed to Mrs. Harkrider by deed dated March 29, 1927, for a consideration of $1,000, cash, paid by a check drawn by Mrs. Harkrider on her bank account designated "Mrs. T. R. Harkrider, Special." This deed contains no recitation that the house and lots were to be the separate property of Mrs. Harkrider, their mother.

It is appellants' contention that the house and lots were the separate property of Mrs. Harkrider by virtue of the terms of R.S. 4622, which is: "Funds on deposit in any bank or banking institution, whether in the name of the husband or wife, shall be presumed to be the separate property of the party in whose name they stand, regardless of who made the deposit, and unless said bank or banking institution is notified to the contrary, it shall be governed accordingly in honoring checks and orders against such account."

Concerning the meaning and effect of the statute quoted above, it is said in Rippy v. Rippy, Tex.Civ.App., 49 S.W.2d 494, 496 (writ refused): "Manifestly this statutory presumption was meant for the guidance of the bank in its dealings with the deposit or account of the spouse in whose name it is, and was also meant to apply to dealings of creditors generally with the spouse in whose name it is. `It was never meant to supplant, even as to such deposit itself, the general presumption' of community estate above discussed."

R.S. Art. 4619, Vernon's Ann.Civ.St. art. 4619, which we think is controlling here, is: "All property acquired by either the husband or wife during marriage, except that which is the separate property of either, shall be...