Clift v. Clift

• Court: Supreme Court of Texas
• Writing for the Court: Gaines
• Citation: 10 S.W. 338
• Decision Date: 27 November 1888
• Parties: CLIFT <I>et al.</I> <I>v.</I> CLIFT <I>et al.</I&gt

10 S.W. 338 CLIFT et al.
v.
CLIFT et al. Supreme Court of Texas. November 27, 1888.

Page 339

Appeal from district court, Ellis county; ANSON RAINEY, Judge.

Action by Marvin Clift and others against Leonora Clift and others, for partition of land of which Stephen A. Clift died seised, and for the settlement of claims by the plaintiffs for improvements alleged to have been made with community funds of the second marriage of decedent upon the separate property of the first wife and the community property of the first wife. From the judgment rendered the defendants appeal.

A. A. Kemble & Son, for appellants. Groce & Templeton, for appellees.

GAINES, J.

Stephen A. Clift married in the year 1859. In February, 1871, the wife of that marriage died, leaving three children, who are the appellants in this court. In the latter part of the year 1871 he married a second wife, the appellee Leonora Clift, and died in 1882, leaving four children of the second marriage. At the time of the death of the first wife there were certain lots in the then town of Waxahadrie upon which he resided with his family and did business as a merchant. He continued in the occupation and use of these lots until his death. Some of the lots were of the separate property of the first wife, and others were of the community estate of himself and his second wife. This suit was brought by the second wife and her children against the children of the first marriage, for the purpose of having a partition of the community lots, and for the adjustment of certain equities claimed to have grown out of improvements placed upon the property with the community funds and estate of the second marriage. The main contention of appellants is that the court erred in its decree in reference to a certain lot 4, upon which Clift erected a brick store-house after his second marriage. The lot and storehouse front on a square looking west. The lot is 40 feet wide, and the south half, it is conceded, was the separate estate of the first wife. The north half had been sold by Clift and the first wife during their marriage, and a strip thereof 10 feet wide, adjoining the south half, and extending its entire length, was bought back during her life-time. It is also conceded that this strip was community property of the first marriage. The brick store-house is 23 feet wide, and is situated upon the strip of 10 feet, and extends over 13 feet upon the south half. The court below found that the house was paid for by a lot of the value of $600, which was community property of the first marriage, and by goods and money, which belonged in common to Clift and his second wife, and that the house was worth $3,000. The ground upon which the house stood on the south half of lot 4 was adjudged to be the property of appellants, and that on the north was decreed to belong, one undivided half to appellants, and the other undivided half to all the parties, as follows: A third interest for life to appellee Leonora Clift, and subject to this life-estate, that half to belong to all the children of S. A. Clift, each holding an equal interest. In other words, the court, in effect, adjudged that, as between the parties to this suit, one undivided half of the strip of land, 10 feet wide, on the north half of lot 4, was to be treated as the separate property of the first Mrs. Clift at the time of her death, and the other half as the separate property of her husband at the time of his death. So far the conclusions were correct. But it also adjudged that appellee Leonora Clift had an interest of $1,200 in the store house; that her children had an interest of $857.15, and appellants an interest of $942.85, in the same. This result was reached by allowing Mrs. Clift one-half the value of the community assets of herself and her deceased husband which went into the building; by awarding to appellants the value of one-half of the assets of the community estate of their father and mother, which was also used in its construction; and allowing all the children of both marriages the value of the other half of all such assets; that is to say, the value of one-half of all the property and money used in erecting the house. The decree appointed commissioners to divide the property in accordance with the respective interests of the...