Cantrell v. Woods

• Court: Texas Court of Appeals
• Writing for the Court: Tirey
• Citation: Cantrell v. Woods, 150 S.W.2d 838 (Tex. App. 1941)
• Decision Date: 27 March 1941
• Docket Number: No. 2318.,2318.
• Parties: CANTRELL v. WOODS.

150 S.W.2d 838

CANTRELL v. WOODS.

No. 2318.

Court of Civil Appeals of Texas. Waco.

March 27, 1941.

Motion for Leave to File Petition for Rehearing Denied May 1, 1941.

Appeal from District Court, Ellis County; A. R. Stout, Judge.

Suit in trespass to try title by W. L. Woods, Jack Woods, and Willie Mae Lynch and her husband against Barnie Cantrell to recover title to and possession of certain realty, wherein the defendant filed a cross-action and plea of reconvention. The court granted plaintiffs' motion to dismiss as to Jack Woods and Willie Mae Lynch and her husband. From a judgment in favor of W. L. Woods, the defendant appeals.

Judgment affirmed.

Barnie Cantrell and W. M. Pierson, both of Dallas, for appellant.

A. D. Emerson, of Waxahachie, for appellee.

TIREY, Justice.

This is a suit in trespass to try title, brought by W. L. Woods, Jack Woods and Willie Mae Lynch and her husband, to recover title to and possession of a certain tract of land in Ellis county, being approximately 21 acres and being in two tracts, one of 14 acres and the other of 7 acres, separated by a road, located just outside the corporate limits of the city of Waxahachie. Defendant Barnie Cantrell answered in due order of pleading, and, in addition thereto, filed cross-action against the plaintiffs and set up substantially that the property in question was owned jointly by the plaintiff W. L. Woods and defendant; that the defendant was the owner of an equal undivided one-half interest therein, and that Jack Woods and Willie Mae Lynch and her husband had no title thereto or interest therein; and he asked for partition of the property; and that in the event the court determined said property was not susceptible of partition that the same be sold and the proceeds thereof partitioned equally between plaintiff W. L. Woods and this defendant. The case was tried to the court without the intervention of a jury, and upon the trial the court granted plaintiffs' motion to dismiss as to Jack Woods and Willie Mae Lynch and her husband, which order was duly entered, and this order is not assailed. The trial court awarded to the plaintiff, W. L. Woods, title to and possession of the property in question against the defendant, Barnie Cantrell. The trial court further found that defendant, Barnie Cantrell, was not entitled to recover on his cross-action and plea of reconvention against plaintiffs, and he has appealed.

At the request of the plaintiff, the court filed findings of fact and conclusions of law. The findings of fact are substantially as follows: (1) that plaintiff, W. L. Woods, in the year 1900, intermarried with Eloise Johnson, and, while living together as husband and wife, accumulated the tract of land in question and also another tract of land inside the city limits of Waxahachie, which they used and occupied as a home; (2) that in 1920, W. L. Woods and his wife orally agreed to permanently separate and live apart from each other and orally agreed to partition and divide their community property; that the husband was to have for his part of their community property the 21 acres of farm and pasture land in question, and that the wife was to have for her share the home place in town and all of the furniture; that the agreement was consummated and was not annulled; that the husband and wife each went into possession of the respective tracts partitioned to them; that the property received by the wife in partition was more valuable than that received by the husband; that within a short time after the partition, the wife, joined by her husband, W. L. Woods, sold the real estate so received by her in partition for the sum of $2,500; that she received the whole of the purchase money, and all of the furniture, worth $1,000, and moved to Sherman and thence to Dallas, where she lived until the time of her death in October, 1938; that W. L. Woods and his wife, Eloise Woods, contemplated divorce but that a divorce was never granted; that in March, 1930, Eloise Woods intermarried with Barnie Cantrell, the defendant herein, said marriage having been consummated by virtue of a marriage license issued to him and Miss Eloise Gilbert; that said Cantrell thought that Mrs. Woods was then a single widow by the name of Gilbert and remained under such impression until after the death of his wife; (3) that Mrs. Eloise Woods (Cantrell) died testate and bequeathed all of her property to the defendant Barnie Cantrell, and said will was duly admitted to probate.

The trial court concluded as a matter of law substantially (1) that the parol partition of real estate is not within the purview of the statute of frauds; (2) that the parol agreement made and entered into by and between W. L. Woods and wife, Eloise Woods, in 1920, dividing and partitioning their community property, was a valid and enforceable contract; and (3) that the partition, as made, was an equitable one and that it appealed to the conscience of the court; and that since said parol partition was binding on Eloise Woods, it was necessarily binding on those claiming under her.

Appellant has assailed the judgment of the trial court mainly on the grounds (1) that the partition, being by parol, was in contravention of the statute of frauds; (2) that said parol partition being between husband and wife, Mrs. Eloise Woods, by reason of her coverture, was precluded from making a binding contract; (3) that the court permitted plaintiff, W. L. Woods, to testify to an oral agreement as to separation and partition of property between himself and Eloise Woods, deceased, in violation of the provisions of Article 3716, Vernon's Annotated Civil Statutes; and (4) that the evidence was insufficient to support the findings of fact found by the trial court.

It has always been the settled law in Texas that a valid, enforceable, parol partition of land can be made by the joint owners thereof, and that the same is not prohibited by the statute of frauds, and that married women are not excepted from this rule. Aycock v. Kimbrough, 71 Tex. 330, 12 S.W. 71, 10 Am.St.Rep. 745; Scott v. Watson, Tex.Civ.App., 167 S.W. 268; Wilson v. Beck, Tex.Civ.App., 286 S.W. 315; Houston Oil Co. v. Kirkindall, Tex. Sup., 145 S.W.2d 1074, points 5-7, page 1077. We think it is equally as well settled that a husband and wife, upon permanent separation, can, by parol, partition property between themselves, and that such a contract is a valid and enforceable one. Moore v. Moore, 28 Tex.Civ.App. 600, 68 S.W. 59; Rains v. Wheeler, 76 Tex. 390, 13 S.W. 324, point 4, page 326; Johnson v. Johnson, Tex.Com.App., 14 S.W.2d 805; 15 Tex.Jur. sec. 183, p. 699. It is true that such agreement may be annulled by subsequent reconciliation, followed by resumption of marital relations (see Hornsby v. Hornsby, 127 Tex. 474, 93 S.W.2d 379, point 1, for collation of authorities), but no such contention is here raised, and the contrary abundantly appears. Assignments Nos. 1 and 2 are therefore overruled.

We have carefully considered that assignment...