Clemmons v. McDowell

• Decision Date: 14 December 1927
• Docket Number: (No. 2925.)
• Citation: 5 S.W.2d 224
• Parties: CLEMMONS et al. v. McDOWELL et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

5 S.W.2d 224

CLEMMONS et al. v. McDOWELL et al.^*

(No. 2925.)

Court of Civil Appeals of Texas. Amarillo.

December 14, 1927.

Rehearing Denied January 4, 1928.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Wheeler County; W. R. Ewing, Judge.

Action by Mary Louise Clemmons and husband against D. D. McDowell and another. Judgment for defendants, and plaintiffs appeal. Affirmed.

R. H. Templeton, of Wellington, and Donald & Donald, of Bowie, for appellants.

Carrigan, Britain, Morgan & King, of Amarillo, and Reynolds, Hill & Engledow, of Shamrock, for appellees.

HALL, C. J.

The plaintiff Mrs. Mary Louise Clemmons, joined pro forma by her husband, J. E. Clemmons, sued D. D. McDowell and Magnolia Petroleum Company, a corporation, in trespass to try title to recover the title and possession of two sections of land situated in Wheeler county, Tex., described as all of sections Nos. 29 and 51 in block No. 23, H. & G. N. Ry. Company's surveys.

The defendant McDowell answered by general demurrer, plea of not guilty, and the statutes of limitation of 3 and 5 years. Rev. St. 1925, arts. 5507, 5509.

The Magnolia Petroleum Company answered by general demurrer and plea of not guilty.

The trial court directed the jury to return a verdict for the defendants McDowell, the owner of the fee, and the Magnolia Petroleum Company, the owner of an oil and gas lease covering the property, and against the plaintiffs, Mrs. Clemmons and her husband.

From the judgment entered in accordance with this verdict, this appeal is prosecuted.

It appears from the record that W. V. Bailey, the father of Mrs. Clemmons, purchased the land involved in this suit, with other property, from Thomas R. White, Jr., on October 25, 1902, for a consideration of $4,800, of which amount $1,200 was paid in cash, and the balance of $3,600 was represented by five vendor's lien notes, each in the sum of $720, due one, two, three, four, and five years after date, respectively. On March 14, 1903, he executed a deed to his father-in-law, Wade Atkins, conveying the property for the recited consideration of $1,200 in cash and the assumption of the payment of the five notes executed by Bailey to White. Bailey was the sole grantor in the deed to Atkins. In the interim between October 25, 1902, and March 14, 1903, Mrs. Alma Atkins Bailey, the wife of W. V. Bailey, died intestate, leaving a minor child, the appellant Mrs. Mary Louise Clemmons, her only heir at law. While Wade Atkins was still the record owner of the land in question, the five vendor's lien notes mentioned above were paid by Atkins to Thomas R. White, and the vendor's lien released to W. V. Bailey, his heirs and assigns. Subsequent to the payment of these notes by Wade Atkins, he, joined by his wife, Mary Atkins, conveyed the property by general warranty deed to third parties, who, in turn, reconveyed the same to Wade Atkins on September 10, 1910. On December 12, 1911, Mary E. Atkins, wife of Wade Atkins, died intestate, and an application to be appointed community administrator of the estate of himself and deceased wife was filed in the probate court of Wheeler county by Wade Atkins, on June 21, 1912. In this application, we find, in setting out the names of the heirs of Mary E. Atkins, deceased, the following:

"Mary Louise Baily, a girl eleven years old, who is the child of Alma Atkins Baily, deceased, and a grandchild of Mary E. Atkins, deceased, who resides at Mineral Wells, in Palo Pinto county, Tex."

After Wade Atkins qualified as community administrator of himself and his deceased wife, he conveyed the land in question by general warranty deed, dated January 15, 1915, to Horace J. Young.

On April 20, 1922, Young and wife executed an oil and gas lease covering the same land to the Magnolia Petroleum Company. On October 21, 1923, by general warranty deed, Young and wife conveyed the fee to D. D. McDowell, subject to said oil and gas lease.

The peremptory instruction in favor of the defendants presents a question of fundamental error.

The court refused to peremptorily instruct the jury in behalf of the plaintiffs. The plaintiffs filed a written motion for peremptory instruction in their favor and, as part of the same instrument, requested the court that, if their peremptory instruction be not given, the case be submitted to the jury upon several special issues, which were incorporated in the motion. Upon the court's refusal to give either the peremptory instruction in favor of plaintiffs or to submit the several special issues, the plaintiffs excepted to the action of the court only in refusing to give the peremptory instruction. No exception was reserved to the court's action in refusing to submit the several special issues, and for this reason the proposition based upon such action cannot be considered. Requests for special issues should be submitted each upon a separate piece of paper. If all of the issues requested are written upon the same paper, and either of the issues should not be submitted, the court would not err in refusing to submit any of them. Federal Life Ins. Co. v. Hoskins (Tex. Civ. App.) 185 S. W. 607; Hovey v. Sanders (Tex. Civ. App.) 174 S. W. 1025.

The record shows that, after the death of his wife, W. V. Bailey conveyed the land to his father-in-law, Wade Atkins. As part of the consideration for the conveyance, Atkins assumed the payment to Bailey's vendor of five notes for $720 each. By this transaction, Wade Atkins became primarily liable for the payment of these notes, Bailey's liability thereafter being that of a surety. Hill v. Hoeldtke, 104 Tex. 594, 142 S. W. 871, 40 L. R. A. (N. S.) 672; Hoeldtke v. Horstman, 61 Tex. Civ. App. 148, 128 S. W. 642; Brannin v. Richardson, 108 Tex. 112, 185 S. W. 562.

The record shows that these notes were paid and the lien released to the assignees of Bailey about five years after the sale from Bailey to Atkins, and it may be reasonably inferred that Atkins was the payer.

The plaintiff's witness, Temple Atkins, testified that soon after the death of his sister, Mrs. Bailey, his father, Wade Atkins, who thought that W. V. Bailey was guilty of causing the death of his wife, told Bailey, in the presence of the witness, that if Bailey would convey the land in question to Wade Atkins the latter would not prosecute him for murder, and that Bailey then agreed to and did subsequently execute the deed dated March 14, 1903; that Wade Atkins said he would keep the land for Mary Louise Bailey (now Mrs. Clemmons). This evidence tended to rebut the contention of defendant that Bailey had sold the property for the purpose of paying community debts, and, if true, to show that Wade Atkins was not a bona fide purchaser, but there is no evidence whatever that Young, the grantee of Wade Atkins, had any knowledge of these facts prior to the date of his purchase of the land. That Bailey, as survivor, had the right to convey the land, which is conceded to be community property, for the purpose of paying community debts, is settled law in this state. Upon the death of one member of the community, where there are children, the survivor is the owner in his own right of one-half of the property, and has the right to administer the community property for the purpose of paying community debts, without the consent of or any supervision by the probate court. Levy v. Moody (Tex. Civ. App.) 87 S. W. 205; Wiseman v. Swain (Tex. Civ. App.) 114 S. W. 145; American National Bank v. First National Bank, 52 Tex. Civ. App. 519, 114 S. W. 176.

During the marriage, if the husband contracts debts for the community, they are, of course, his debts, and after the death of the wife he is still liable for them as before. Since property, under such circumstances, descends subject to the debts of the community, and as administration is designed to facilitate the payment of such debts, the surviving husband may freely sell and convey for the payment of those debts, which, were there an administration, the court might properly direct to be paid. In such case there is no need of the appraisement, inventory, and bond, because heirs and distributees, who were designed to be protected by the statute, have rights only in the residue after such debts are paid. Morse v. Nibbs (Tex. Civ. App.) 150 S. W. 766; Rippy v. Harlow, 46 Tex. Civ. App. 52, 101 S. W. 851; Allen v. Bright (Tex. Civ. App.) 23 S. W. 712; Fagan v. McWhirter, 71 Tex. 567, 9 S. W. 677; Davis v. McCartney, 64 Tex. 584; Ashe v. Yungst, 65 Tex. 631; Watkins v. Hall, 57 Tex. 1; Wilson v. Helms, 59 Tex. 680; Sanger v. Moody, 60 Tex. 96; Veramendi v. Hutchins, 48 Tex. 531.

While a conveyance must be for the bona fide purpose of paying community debts, it is not required that the property conveyed be no greater in value than the total amount of the debts, for circumstances may be such as that a debt may be paid only by making sale of property of greater value. If the sale be in good faith, for the purpose of discharging the debt, it is valid, and if prima facie authority for selling appears, because of the existence of community debts, if fraud or any equities be relied upon to defeat the conveyance, the burden of proving such is upon the party asserting it. Cage v. Tucker, 14 Tex. Civ. App. 316, 37 S. W. 180; McBride v. Moore (Tex. Civ. App.) 37 S. W. 450; Moody v. Smoot, 78 Tex. 119, 14 S. W. 285; Horan v. O'Connell (Tex. Civ. App.) 144 S. W. 1048; Manchaca v. Field, 62 Tex. 135; Walker v. Abercrombie, 61 Tex. 69; Jones v. Harris (Tex. Civ. App.) 139 S. W. 69; Iiams v. Mager (Tex. Civ. App.) 216 S. W. 422; Morgan v. Lomas (Tex. Civ. App.) 159 S. W. 869; Norwood v. King (Tex. Civ. App.) 155 S. W. 366; Grundy v. Greene (Tex. Civ. App.) 207 S. W. 964; Crawford v. Gibson (Tex. Civ. App.) 203 S. W. 375; Rippy v. Harlow, supra.

Mrs. Mary E. Atkins died December 12, 1911. The record shows that on July 1, 1912, W. A. Atkins was duly appointed community administrator of the estate of himself and deceased wife; that...