Coggin v. Coggin

• Decision Date: 30 June 1947
• Docket Number: No. 5795.,5795.
• Citation: 204 S.W.2d 47
• Parties: COGGIN v. COGGIN.
• Court: Texas Court of Appeals

204 S.W.2d 47

COGGIN v. COGGIN.

No. 5795.

Court of Civil Appeals of Texas. Amarillo.

June 30, 1947.

Rehearing Denied July 21, 1947.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Lubbock County; G. V. Pardue, Judge.

Suit for divorce by Vera Coggin against H. I. Coggin. From so much of a judgment in favor of the plaintiff as gave her title to property as her separate property and for the balance due on a note of the defendant, the defendant appeals.

Affirmed.

James O. Cade and Robt. J. Allen, both of Lubbock, for appellant.

Burks & McNeil, of Lubbock, for appellee.

LUMPKIN, Justice.

H. I. Coggin, appellant, perfected this appeal from a judgment in which his wife, Vera Coggin, the appellee, was granted a divorce, title to all of the property she claimed as her separate property, and $2,430.40, the balance due on a promissory note. Since the appellant makes no complaint as to that part of the judgment granting the divorce, the only points involved in this appeal concern the correctness of the trial court's judgment with reference to the property and the note.

Upon the dissolution of a former marriage in 1938, the appellee received as her portion of the community estate five tracts of land, located in Montague County, Texas, and Jefferson County, Oklahoma. In addition she inherited from her parents various tracts of land upon which were a number of producing oil wells and from which she received royalties. All of this property, together with a twelve hundred dollar bank account and a house in Wichita Falls, were owned by the appellee prior to her marriage with the appellant. The record reveals the appellee's property was valued in excess of $100,000. The appellant and the appellee were married January 28, 1940, and lived together for about six years.

In her original petition the appellee alleged that she and the appellant had no community property. She claimed as her separate property a home located at 3016 Twenty-Second Street, Lubbock, a Lincoln automobile, certain mineral rights in two tracts of land located in Lubbock County, and a $9,000 vendor's lien note, executed by one Tom French.

The appellant, in his amended answer, specifically pleaded as community property the $9,000 note, the mineral rights reserved in the two tracts of Lubbock County property, which we shall hereafter call the Gill tracts, the Lincoln automobile, and the Lubbock home. The appellant acknowledged that the properties located in Montague County, Texas, and Jefferson County, Oklahoma, were the appellee's separate property.

Appellee specially pleaded as her separate property the property classed by appellant to be community property; that it had been purchased with money derived from the sale of property she had before she married the appellant; that all the deeds thereto recited that the consideration was paid from her separate property and that the property was purchased for her sole use and benefit; and that these deeds were so drawn with the knowledge and acquiescence of the appellant. The appellee further pleaded that in the event appellant established any community interest in any of the property, that she have judgment against him for certain money borrowed by him from her.

Trial was to a jury. To the thirty-three special issues submitted, the jury established, as far as we are concerned in this opinion, the following facts: That the home located at 3016 Twenty-Second Street, Lubbock, the household and kitchen furniture therein, and the two tracts of land conveyed to the appellee by C. M. Gill were purchased with the appellee's individual and separate funds; that none of the appellant's money went into the purchase of these properties; that the $9,000 vendor's lien note signed by Tom French was the appellee's separate property; that the three-fourths interest in the royalty in the two Gill tracts was the separate property of the appellee; and that during the marriage the appellee had loaned the appellant $2,929. The other jury findings will be pointed out as we discuss appellant's various contentions.

The trial court adjudged the home and furniture, the three-fourths mineral interest in the Gill tracts, and $9,000 vendor's lien note to be the appellee's separate property. The Lincoln automobile was adjudged community property and its value fixed at $4,000. It appearing to the court that the appellee had loaned the appellant $2,929 as evidenced by the note, upon which with interest and attorneys' fees the sum of $4,430.40 was due, the court credited the appellant with $2,000, his interest in the automobile, gave the automobile to the appellee and awarded the appellee judgment in the amount of $2,430.40, the balance due on the note.

The appellant attacks the court's judgment in fifteen points of error which, for the purpose of this opinion, we have grouped into these contentions: The court erred in not holding, as a matter of law, that real and personal property accumulated during marriage by either spouse with separate funds inseparably commingled with community funds to be community property; the court erred in rendering judgment in favor of the appellee on the $2,929 note; that the court did not properly define community property and other terms in his charge; and that the court by his conduct prejudiced the appellant's property rights.

The appellant first contends that the trial court erred in not holding, as a matter of law, that real and personal property accumulated by either spouse during their marriage from community bank accounts composed of community funds and separate funds inseparably commingled was community property even though title was in the wife who denied that any part of the bank account had been given her by the appellant. More specifically the appellant asserts that the home, the Gill tracts purchased by the appellee, and the mineral reservations she made when she sold this property, the $9,000 vendor's lien note she received in part consideration, and the Lincoln automobile are community property purchased with community funds.

It is the settled law in this state that rents and crops from separate property are part of the community estate and when these funds become commingled with separate property, as in a bank account, the presumption is that the whole is community property. This presumption is, of course, rebuttable. De Blane v. Hugh Lynch & Co., 23 Tex. 25; First National Bank v. Davis, Tex.Com.App., 5 S.W.2d 753; Frame v. Frame, 120 Tex. 61, 36 S.W. 2d 152, 73 A.L.R. 1512. And this same rule applies to money borrowed by either spouse. Our courts have held that whether borrowed money is separate or community owned depends on the intentions of the parties obtaining the loan. Emerson-Brantingham Implement Co. v. Brothers, Tex.Civ.App., 194 S.W. 608.

As revealed by the evidence, the home at Lubbock was purchased with money the appellee realized by selling one of her five tracts of land to her brother. In attempting to show that community funds went into buying the home, the appellant testified he had $7,500 at the time he married the appellee of which there remained $3,500 at the time he moved to Lubbock. One thousand dollars' of this sum he contributed as earnest money when the purchase contract on the home was signed. However, this was refuted by the introduction of his testimony of May 13, 1944, before the 97th District Court of Montague County, a contempt hearing in which his former wife, Elma Coggin, sought support for her minor child. At the hearing the appellant swore he did not have a penny.

In explaining the $1,000 the appellee stated the money came from a safety deposit box at Lamesa, Texas, and was from the sale of her former home at Wichita Falls. The appellant testified he had placed $2,500 in the Wichita Falls home; this the appellee denied. Evidenced by nineteen cancelled checks payable to various furniture concerns and drawn on the two Lubbock banks carrying her account, the appellee testified that all the furniture in the Lubbock home was her separate property bought with her separate funds.

On March 8, 1945, C. M. Gill and his wife agreed to sell to the appellee, as her separate property, two tracts of land located in Lubbock County. The deed given by Gill and his wife for this property acknowledges receipt of $10,000 as having been paid by the appellee out of her separate property and recites that these two tracts of land are conveyed to the appellee for her sole and separate use and benefit. As part of the consideration, the appellee assumed two loans on the property. When Tom French bought these tracts, he assumed the loans on the property, paid the appellee $4,570 and gave her a vendor's lien note for $9,000. The appellee retained three-fourths of the mineral rights on these two tracts of land.

By a careful reading of the statement of facts, we have traced the appellee's separate funds through her various bank accounts. The appellee had a bank account in Wichita Falls, one in Nocona, Texas, one in Lamesa and two in Lubbock. We fail to find that any of the funds she had on deposit in Wichita Falls, Nocona, or Lamesa were transferred to Lubbock, other than the money derived from her brother at the time of the sale of her separate property. Part of this fund was immediately withdrawn from the Nocona Bank where it was originally placed and deposited in two Lubbock banks.

Concerning the Lincoln automobile, the appellee testified that on September 6, 1946, she gave the appellant a check for $900. The appellee said the appellant went to Detroit for the purpose of buying this automobile. In addition to the $900 check, he had four or five thousand dollars, most of which had been derived from the sale of her old car and other money that had come from the sale of her home in Wichita Falls.

As long as the identity of the property or of the funds can be traced, it is fundamental that the wife's separate estate may undergo changes and mutations without affecting...