Cleveland v. Milner

• Decision Date: 07 April 1943
• Docket Number: No. 1932-8049.,1932-8049.
• Citation: 170 S.W.2d 472
• Parties: CLEVELAND et al. v. MILNER.
• Court: Texas Supreme Court

170 S.W.2d 472

CLEVELAND et al. v. MILNER.

No. 1932-8049.

Commission of Appeals of Texas, Section B.

April 7, 1943.

Rehearing Denied May 5, 1943.

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

Suit by W. J. Milner, as administrator of the estate of A. E. Milner, deceased, against Elija Ausben Cleveland and Gladys Cleveland, his wife, and others in trespass to try title to certain realty and in the alternative for partition of the realty. From a judgment in favor of the plaintiff, the named defendants appealed to the Court of Civil Appeals. To review a judgment of the Court of Civil Appeals, 166 S.W.2d 351, affirming the trial court's judgment, the named defendants bring error.

Judgments of trial court and Court of Civil Appeals reversed, and cause remanded to trial court.

Donald & Donald and Joe H. Cleveland, all of Bowie, for appellants.

Reid & Strickland and Joe Reid, both of Goose Creek, for appellee.

SMEDLEY, Commissioner.

Respondent W. J. Milner, as administrator of the estate of A. E. Milner, deceased, sued petitioners Ausben Cleveland and his wife, Gladys Cleveland, for the title and possession of Lots One and Two in Block 2 of the Wright addition to the town of Goose Creek. In another count he alleged in the alternative that he and petitioners were joint owners of the two lots and prayed for partition. The trial court, after peremptorily instructing the jury, rendered judgment in favor of respondent against petitioners for the title and possession of the lots. Kathleen Martin and her husband, George Martin, were made parties defendant on account of their having warranted the title to Lot Two, judgment being sought against them only in the event respondent should not prevail in his suit for title.

Respondent claims title, for the estate of A. E. Milner, deceased, through and under two deeds executed by Ausben Cleveland, in which his wife, Gladys Cleveland, did not join. Two controlling questions are presented. The first is whether Ausben Cleveland and Gladys Cleveland had a homestead right in the lots; and the second question is whether the conveyance of the lots without the wife's consent may be sustained as a partition of property jointly owned. The Court of Civil Appeals, without deciding the first question, but assuming that Ausben and Gladys Cleveland had a homestead right in the lots, held that A. E. Milner acquired title through valid deeds executed by way of partition. 166 S.W.2d 351.

The material facts, which are undisputed, are as follows: A. E. Milner, on May 24, 1924, married Gabby Cleveland, who had two children by her first marriage, Ausben Cleveland and Kathleen Cleveland. These children, in 1924, were thirteen and eleven years old. A. E. Milner by a former marriage was the father of three children who were minors when he married Mrs. Cleveland. On June 6, 1924, the owner of Lots One and Two, for a consideration of $550 paid from the proceeds of insurance left to the two Cleveland children by their father, conveyed the lots to them. A short time thereafter Milner moved onto Lot One a two-room boxed house that he owned. Two rooms and a bath were soon added and in that house Milner and his wife, with his children and her children, made their home. In the year 1928 Milner acquired by purchase and deed Lot Three, which adjoined Lot Two, and thereafter the three lots, each of which was 50 by 100 feet in dimension were used by the family as a home. The house was on Lot One, with small improvements, a wash shed and a chicken house, on Lots Two and Three.

Mrs. Milner died February 23, 1933, and on March 7 of the same year Kathleen Cleveland married George Martin and moved away. Ausben Cleveland married Gladys Cleveland December 11, 1934, and brought her to live in the house on Lot One, and thereafter Milner and his minor children and his stepson, Ausben Cleveland and Ausben's wife, Gladys, continued to live there and to use the house and the three lots as their home. Gladys Cleveland assumed the management of the home, cooked the meals, washed the clothes, including those of Milner and his children, and "worked as any housewife would work in the home". Mrs. Cleveland testified that while she was living there no person had ever given her instructions as to the use, management or control of the house and premises and that she had at all times given instructions to others as to the manner of their use.

On April 12, 1935, three deeds were executed, one by Ausben Cleveland to Kathleen Martin conveying all of his interest, being an undivided one-half interest, in Lot Two, for "$10.00 and other considerations"; one by A. E. Milner and Kathleen Martin and her husband to Ausben Cleveland conveying Lot Three for "$10.00 and other considerations"; and the third by Ausben Cleveland and Kathleen Martin and her husband to A. E. Milner conveying Lot One for $50 in cash and "in further consideration of the passing of mutual deeds of even date to property adjoining the land herein conveyed". On October 14, 1938, Kathleen Martin and her husband, for a consideration of $250 in cash, conveyed Lot Two to A. E. Milner.

After the execution of the deeds of April 12, 1935, and until A. E. Milner died on February 14, 1941, he, his children and Ausben Cleveland and his wife continued to live in the house on Lot One and to use the lots as before, except for a short period in the fall of 1935, during which the old house on Lot One was torn down and a new house of substantial value was built on that lot. The record indicates that A. E. Milner paid for the construction of the new house.

Petitioners contend that Lots One and Two became their homestead by reason of Ausben Cleveland's ownership of an undivided one-half interest in the lots and their occupancy and use of the property as their home and that, since Gladys Cleveland did not join in the two deeds executed by her husband on April 12, 1935, she and her husband are entitled in this suit to recover the entire property. Respondent insists that the lots were the homestead of A. E. Milner, who had an interest in the property, at least as a tenant at will of Ausben Cleveland and Kathleen Martin, and whose occupancy and use of the same as the home of his family had never been interrupted. In this connection he cites Johnson v. Prosper State Bank, Tex.Civ. App., 125 S.W.2d 707, 709, which was approved by this court 134 Tex. 677, 138 S. W.2d 1117, and which holds that "the constitutional privileges of a homestead * * * are not accorded to two claimants, coextensive with each other, on the same tract of land".

If the homestead right in Lots One and Two must have belonged, when the three deeds were executed in April, 1935, to one or the other, that is, to Ausben Cleveland and his wife or to A. E. Milner, it is our opinion that Ausben Cleveland and his wife had the better right.

The evidence that Milner owned the small boxed house, that was moved onto Lot One and in which the family thereafter lived, did not prove that Milner became the owner of an interest in the realty. Title to the lot was in Ausben Cleveland and Kathleen Cleveland who were then thirteen and eleven years of age. The house was erected on the lot for the use and occupancy of these children and their mother, whom Milner had married, as well as for that of Milner and his children, and was so used and occupied for many years. There is no evidence of an understanding that the house should not become permanently annexed to the realty and no evidence tending to prove that Milner at the time when it was erected on the lot intended that it should remain personalty and that he should have the right to remove it. It follows, in our opinion, that the house became a part of the realty and that the two children as owners of the lot became the owners also of the house. Sheer v. Cummings, 80 Tex. 294, 16 S.W. 37; Missouri Pacific Ry. Co. v. Cullers, 81 Tex. 382, 17 S.W. 19, 13 L.R.A. 542; O'Neil v. Quilter, 111 Tex. 345, 234 S.W. 528; Bonner v. Wiggins, 52 Tex. 125.

Milner had no...