Clement v. First Nat. Bank

• Court: Texas Supreme Court
• Writing for the Court: Pierson
• Citation: Clement v. First Nat. Bank, 282 S.W. 558, 115 Tex. 342 (Tex. 1926)
• Decision Date: 24 March 1926
• Docket Number: (No. 3940.)
• Parties: CLEMENT v. FIRST NAT. BANK OF PARIS, TEX.

Page 558

282 S.W. 558

CLEMENT v. FIRST NAT. BANK OF PARIS, TEX.

(No. 3940.)

Supreme Court of Texas.

March 24, 1926.

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

Suit by Mae Newton Clement against the First National Bank of Paris, Tex. The judgment of the Court of Civil Appeals (245 S. W. 719) affirmed a judgment for defendant, and plaintiff brings error. Judgments of district court and Court of Civil Appeals reversed, and modified judgment in favor of defendant entered in accordance with opinion.

Wm. H. Clark, of Dallas, and W. L. Willie, of Paris, for plaintiff in error.

Long & Wortham, of Paris, for defendant in error.

PIERSON, J.

This case was referred to Section A of the Commission of Appeals, and an opinion was reported and published in 259 S. W. 561. A rehearing being granted by this court, the aforesaid opinion was withdrawn, and the case was taken under submission by this court.

Plaintiff in error sought an injunction to restrain the sale under execution of certain property situated in the business district of the city of Paris, Tex., claiming a part of same to be her separate property and a homestead right in the entire property. The trial court made the following findings of fact and conclusions of law:

"(1) W. R. Clement owned the property in controversy at the time of his marriage to the plaintiff, Mae N. Clement, in 1909. In 1911 he and his wife moved upon the property and the entire property took the homestead character.

"(2) At the time the property was designated as a homestead in 1911, it was (and is now) within the business district of the city of Paris, and was of the value of $175 per front foot or the total value of $8,400, exclusive of the improvements —the cost of the improvements being $6,000. The property had a frontage on Main street of 48 feet.

"(3) On May 25, 1917, W. R. Clement conveyed as a gift to his wife a portion off the south side of the property 27 feet wide by 108 feet deep, leaving in his own name the balance of the property 21 feet wide by 75 feet deep. Clement and his wife continued the use of the whole property as their homestead until his death in 1919, and his wife continued after his death until the present time to occupy it as her homestead. The present value of the land, exclusive of improvements, is $175 per front foot, and the present improvements of the value of $9,000.

"(4) At the time Clement conveyed the portion to his wife, he was indebted to the First National Bank of Paris in approximately the sum of $300. He owned no property other than this homestead, and owed no debt other than the one to the said bank. Before his death he devised by will the entire property to his wife (the plaintiff), and the will has been duly probated.

"(5) On February 2, 1921, the bank reduced to judgment in the county court of Lamar county, its claim against Clement in the sum of $920, and subsequently had execution issued upon the judgment and levy made upon the entire property referred to above. A portion of the claim of the bank was the money owing to it by Clement referred to above and the balance was for other moneys loaned to Clement by the bank after the date of the conveyance to his wife by Clement referred to above.

"(6) After the conveyance in 1917 by Clement to his wife they used said property as their homestead, together with the portion of the property retained by Clement. The indebtedness upon which the judgment was rendered was a community debt or indebtedness of Clement and his wife.

"Under the above facts I conclude as a legal result as follows:

"(1) When the homestead designation was made by Clement and his wife, there was a value of $3,400, in the homestead, exclusive of the improvements, above the constitutional limit of $5,000, as exempt, which excess value was liable for the debts of W. R. Clement.

"(2) The excess value figured a front foot value of $70, on the entire 48-foot frontage, and I think the 21 feet frontage owned by Clement at his death has a proportionate liability of $70 per foot or a total liability of $1,470.

"(3) I think the legality of the conveyance by Clement to his wife of the 27 feet of the land depends upon whether the excess in the remaining 21 feet was amply sufficient to pay whatever debts he owed at the time of his conveyance. I think creditors could follow the excess value in that 27 feet, which was approximately $1,890, if the debts of Clement could not be paid from the 21 feet.

"(4) It follows therefore that the court is of the opinion that judgment should be that temporary writ of injunction should be dissolved, and that the 21 feet should be sold, and that the judgment of the bank should be paid from the proceeds or to the amount of $1,470 of the proceeds, and that the balance resulting from the sale, after paying the judgment would of course be paid to the plaintiff; that, if the 21 feet should not produce sufficient to pay the judgment, the portion (27 feet) conveyed to the wife should be held subject to sale in order to reach enough of the excess value represented in that property as is necessary to pay the judgment."

The trial court entered a judgment in favor of the appellee, directing that the property having a frontage of 21 feet on Main street be sold under such execution and the proceeds therefrom to the amount of $1,470 be applied in satisfaction of the judgment; any balance remaining therefrom to be paid over to the said Mae Newton Clement, the plaintiff below. The judgment further adjudges that, if the sale of the said 21 feet frontage should not produce sufficient money to satisfy said judgment, then the balance of said property, having a frontage of 27 feet on Main street, shall be sold under said execution, and the proceeds therefrom to the amount of $1,890 shall be applied to the payment of such unpaid balance of said judgment.

After ordering the sale of the north portion of the property having a frontage of 21 feet on Main street, and that the proceeds thereof to the amount of $1,470, found by the court to be the excess value in the 21 feet of the homestead, be applied to the satisfaction of defendant in error's judgment, the trial court's judgment decreed:

"It is further considered, ordered, adjudged, and decreed by the court that, if the sale of the said 21 feet frontage should not produce sufficient money to satisfy said judgment, then the balance of said property having a frontage of 27 feet on Main street shall be sold under said execution, and the proceeds therefrom to the amount of $1,890 shall be applied to the payment of such unpaid balance of said judgment."

It is apparent that the trial court's judgment subjected the part of the property owned by Mrs. Clement to the payment of the indebtedness of the bank, including that made and incurred subsequent to the transfer to her.

Plaintiff in error presented for the first time in her brief in the Court of Civil Appeals the following assignment:

"The court erred in its findings of law, in allowing an execution against the property in controversy in favor of subsequent creditors, as well as existing creditors, instead of allowing it, if at all, to existing creditors at the time of recording of deed by Clement to plaintiff, in the absence of allegations, proof, or finding of fraud."

This assignment was presented as disclosing fundamental error. The honorable Court of Civil Appeals sustained defendant in error's objection to its consideration, and affirmed the judgment of the trial court. Plaintiff in error says that it was error for the trial court to subject that portion of the property which was conveyed to her by deed of gift on May 25, 1917, to the satisfaction of her deceased husband's debts, which were made and incurred after said deed was executed and recorded, and that said error is apparent on the face of the record, and therefore should have been considered and corrected by the honorable Court of Civil Appeals.

In Wilson v. Johnson et al., 94 Tex. 272, 60 S. W. 242, this court, speaking through Chief Justice Gaines, said:

"Both under the statute and under the rules, the court may consider errors ...