Clayman v. Lindsay

• Citation: 247 S.W.2d 300
• Decision Date: 15 November 1951
• Docket Number: No. 12317,12317
• Parties: CLAYMAN et al. v. LINDSAY.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 300

247 S.W.2d 300

CLAYMAN et al. v. LINDSAY.

No. 12317.

Court of Civil Appeals of Texas, Galveston.

Nov. 15, 1951.

Rehearing Denied March 27, 1952.

Walter F. Brown and H. Fletcher Brown, of Houston, for appellant.

Elledge, Elledge, Urban & Elledge and Vernon Elledge, all of Houston, for appellee.

CODY, Justice.

This was a formal action in trespass-to-try-title, which was coupled with various alternative pleas, brought by appellee, E. W. Lindsay, against Emilie King Clayman and husband, appellants, involving two lots in the City of Houston know as 2505 Beatty Street. The appellants disclaimed except as to an undivided one-half interest in the property subject to the homestead rights of appellee.

The statement of the nature and result of the case can be simplified by noting at the outset certain of the undisputed facts. Appellee was the surviving husband of Frances M. Lindsay and had been married to her for more than forty years when she died testate on April 17, 1947. He duly qualified as independent executor of his deceased wife's will. Mrs. Lindsay left no child nor descendants of any child surviving her. Mrs. Clayman was an heir at law of the deceased Mrs. Lindsay and related to Mrs. Lindsay as a niece.

It was further undisputed that the property in question was the subject of a written contract of sale dated February 14, 1939, between the Houston Land & Trust Company, on the one part, and Mrs. Lindsay and appellee, on the other part, which contract, among other things, provided:

'That for and in consideration of the sum of Nine Hundred Fifty and No/100 Dollars ($950.00), to be paid by Mrs. Frances M. Lindsay out of her own separate funds to Party of the First Part, as hereinafter stipulated, said Party of the First Part hereby agrees to sell to Mrs. Frances M. Lindsay, as her separate property and for her own separate use and estate, all that certain real estate lying and being situated in Harris County, Texas, known and described as Lots Nos. One (1) and Two (2), Block No. Six (6), in Brookline Addition to the city of Houston.

'The payment for said property is to be made by Mrs. Frances M. Lindsay to said Party of the First Part in the following manner:

'The sum of Fifty and No/100 Dollars ($50.00), in cash by the said Mrs. Frances M. Lindsay out of her own separate funds, the receipt of which is hereby acknowledged, and the balance of Nine Hundred and No/100 Dollars ($900.00) * * *'.

The foregoing contract showed on its face the installment payments were made which paid it out on February 19, 1945. Then, on March 15, 1945, the Houston Bank & Trust Company, formerly known as the Houston Land & Trust Company, executed a deed, filed for record March 19, 1945, which was regular in all respects, and which contains the following: '* * * for and in consideration of the sum of Nine Hundred Fifty Dollars ($950.00) cash to it paid by Mrs. Frances M. Lindsay, out of her own separate funds, the receipt of all of which is hereby acknowledged, has Granted, Sold and Conveyed, and by these presents does Grant, Sell and Convey unto the said Mrs. Frances M. Lindsay, as her separate property and for her own separate use and estate, of Birmingham, Alabama, all that certain real estate lying and being situated in Harris County, Texas, known and described as follows: * * *.'

The gist of the alternative pleas which appellee joined to the formal trespass to try title action, so far as we here notice them, were, in substance: (1) that notwithstanding the recitation of the contract and deed, the funds used in making the payments provided in the contract and deed, were community property of appellee and Mrs. Lindsay, now deceased; (2) also that it was orally understood between appellee and Mrs. Lindsay that, notwithstanding recitals of the contract and deed, the payments that were thereunder made were made out of community funds (there being no other funds), and that pursuant to said agreement the property was taken in the name of Mrs. Lindsay as her separate estate, but was taken to be held as trustee for the community estate of the parties; (3) that in any event if the lots in question were the separate property of Mrs. Lindsay as a matter of law, nevertheless she left a last will and testament which was duly probated and it was the intention expressed by her in her said will, albeit ambiguously expressed, that all of her property not expressly otherwise devised should pass to, vest in and become the property of appellee, so that if said two lots were her separate property they did vest in appellee by virtue of Mrs. Lindsay's last will and testament; (4) that all sums used in making of payments under the contract and deed were community property as were all payments made for the erection and construction of the improvements made thereon and appellee was entitled to have a lien established against said two lots, should they be held to be the separate property of Mrs. Lindsay, to secure the payment of such community funds.

At the conclusion of the evidence appellants moved for a directed verdict, which motion was refused and all issues made by appellee's pleadings were submitted to the jury. The jury answered all issues so submitted to them in favor of appellee. Appellant seasonably moved for judgment notwithstanding the verdict, which motion was refused. The court rendered judgment for appellee, based upon the jury's answers to said special issues, for title and possession of the two lots in question.

Appellants have not complied with paragraph 'b' of Rule 418, Texas Rules of Civil Procedure, which directs the points to be so stated that they will occupy a single page of the brief, but we construe appellants' first grouping of the errors complained of as constituting their first point and as so construed said point complains of the court rendering judgment for title and possession of the lots in question, based upon the verdict, because the consideration specified in the contract and the deed was contractual in nature and as a matter of law under said contract and deed the two lots vested in Mrs. Lindsay as her separate property and estate. We are constrained to sustain...