Carter v. Grabeel

• Decision Date: 21 November 1960
• Docket Number: No. 6998,6998
• Citation: 341 S.W.2d 458
• Court: Texas Court of Appeals
• Parties: Leona C. CARTER, Appellant, v. Chester C. GRABEEL et al., Appellees.

Page 458

341 S.W.2d 458

Leona C. CARTER, Appellant, v. Chester C. GRABEEL et al., Appellees.

No. 6998.

Court of Civil Appeals of Texas, Amarillo.

Nov. 21, 1960.

Rehearing Denied Dec. 27, 1960.

Allen & Allen, Perryton, for appellant.

Archer & Brownlee, Perryton, for appellees.

DENTON, Chief Justice.

This is a suit by Leona C. Carter, appellant, against Chester C. Grabeel and husband, Ray Grabeel, appellees, in the nature of trespass to try title. Mrs. Carter is the widow of C. C. Carter, deceased, and Mrs. Grabeel is the daughter of Mr. Carter by a previous marriage. G. C. Carter, who is the son of Leona and C. C. Carter, is not a party to this suit. The two named children and Mrs. Carter are the only surviving heirs of C. C. Carter who died intestate on January 4, 1959. Leona and C. C. Carter were married in October, 1928, more than two years prior to the acquisition of the land in question.

The land in controversy, a quarter section located in Ochiltree County, Texas, was acquired on December 30, 1930, by Leona Carter by deed from Farmer's National Bank of Cherokee, Oklahoma. The total consideration paid for the land was $5,600, with $4,096 being paid in cash, and the assumption by Leona Carter of three vendor's lien notes each in the amount of $501.33. The trial court found, and all parties agree, that the cash down payment of $4,096 was the separate property of Leona Carter. It is to be noted that the deed did not recite that the money paid was from the separate estate of Mrs. Carter nor did the deed indicate whether the property was to be considered separate or community property. No new vendor's lien notes were executed. Mrs. Carter, the grantee, merely assumed the three notes described above. It is further undisputed that the unpaid balance was later paid from the community estate of Leona and C. C. Carter.

After the close of the testimony, the trial court took the case from the jury and rendered judgment to the effect that 40.96/56th of the land was the separate property of Leona Carter and 15.04/56ths was the community property of Leona Carter and the two children, Chester Carter Grabeel and G. C. Carter. The trial court timely filed findings of fact and conclusions of law. Leona Carter duly perfected this appeal, contending the trial court erred in not declaring the entire tract of land to be her separate property.

The sole question to be decided here is to determine the character of the property acquired. Whether the character of the property is separate or community must be established by the facts and circumstances that existed at the time of the inception of the title. John Hancock Mut. Life Ins. Co. v. Bennett, 133 Tex. 450, 128 S.W.2d 791; Smith v. Buss, 135 Tex. 566, 144 S.W.2d 529. We must therefore look to the character of the property at the time it was acquired on December 30, 1930, by Leona Carter.

Appellant contends the entire tract should be declared her separate property on the theory that the cash payment of $4,096 was the separate property of Mrs. Carter and that the community estate was not obligated to pay the deferred payment of $1,503.99 as evidenced by the vendor's lien notes. Neither Leona nor C. C. Carter signed the notes. The deed merely recites that Leona Carter assumed the notes and agreed to pay the three outstanding vendor's notes held by the vendor. The trial court found as a fact that the husband, C. C. Carter, was not a party to the deed in question, and concluded that Carter was not bound to pay the notes assumed by his wife. In our opinion, these findings do not determine the liability of the...