Connor v. Boyd

• Citation: 176 S.W.2d 212
• Decision Date: 21 October 1943
• Docket Number: No. 2540.,2540.
• Parties: CONNOR et al. v. BOYD et al.
• Court: Court of Appeals of Texas

176 S.W.2d 212

CONNOR et al. v. BOYD et al.

No. 2540.

Court of Civil Appeals of Texas. Waco.

October 21, 1943.

Rehearing Denied December 16, 1943.

Appeal from District Court, McLennan County; Giles P. Lester, Judge.

Suit in trespass to try title and for partition by Alice Boyd Connor and husband against N. W. Boyd and others. From an adverse judgment, plaintiffs appeal.

Affirmed.

Street & Street, of Waco, for appellants. Bryan & Maxwell, of Waco, for appellees.

HALE, Justice.

This is a suit in trespass to try title and for partition, involving a house and lot situated in the City of Waco. J. N. Boyd and wife, Alberta Boyd, acquired the legal title to the lot by deed dated July 26, 1905 for a recited consideration of $100 cash, the execution of a note for $50, and the assumption of an outstanding indebtedness of $225. Shortly thereafter a house was constructed upon the lot and thereupon the premises became and continued to be the homestead of the family until the death of the survivor. J. N. Boyd died intestate in 1928, leaving his widow and their two children, to-wit, appellant Mrs. Alice Boyd Connor and appellee N. W. Boyd, as his sole surviving heirs at law. On August 3, 1935, Mrs. Alberta Boyd executed and delivered a deed to appellee reciting that in consideration of love, affection, $5 and a reserved life estate, she conveyed to him "all my entire undivided interest" in the premises in controversy. Mrs. Boyd died in 1937. Appellant instituted the suit, claiming an undivided one-fourth interest in the property as an heir at law of her deceased father. Appellee alleged that the property was purchased with the separate funds of his mother, that the deed dated July 26, 1905, should have conveyed the lot to her as her separate estate, and that the name of his father was inserted as a grantee in such deed through inadvertence. He claimed to own the entire property under the conveyance from his mother. The broad issue thus drawn was whether the property constituted the separate estate of the mother or the community estate of the father and mother.

Upon the conclusion of the evidence the case was submitted to a jury on special issues, in response to which they found, among other things, that the property was purchased with separate funds of Mrs. Alberta Boyd and that the title thereto was put in the name of J. N. Boyd by mistake. In this connection the court charged the jury that by "separate funds" was meant all property, if any, both real and personal, of Mrs. Boyd, owned or claimed by her before marriage and that, if any, acquired afterwards by gift, devise or descent. The record does not show that either party requested a peremptory instruction or made any objection to any part of the court's charge as submitted to the jury. After the verdict of the jury was returned, however, appellant moved the court to render judgment in her favor notwithstanding the verdict upon the contention that the issues as submitted were without support in the evidence and that the undisputed evidence entitled her to the relief sought. Appellee moved for judgment in his favor on the verdict. The court overruled the motion of appellant, granted the motion of appellee, rendered judgment accordingly, and overruled appellant's motion for new trial, to all of which she excepted and from which she has duly appealed.

Appellant says the judgment should be reversed because the undisputed evidence showed the property to be the community estate of J. N. Boyd and wife, Alberta, it being her contention there was no evidence that the consideration for such property was paid from the separate funds of her mother. Since the legal title was acquired during coverture under a deed which did not recite the consideration therefor was paid out of the separate funds of either spouse, or that the property was being conveyed to either as his or her separate estate, the presumption thereby arose that such property constituted the community estate of both. Having arisen as the result of a rule of evidence, however, this presumption was not necessarily conclusive. Like any other rebuttable presumption, it was subject to being overcome by competent, admissible evidence showing facts to the contrary. 17 Tex.Jur., p. 252, sec. 60 and cases cited. As said in the case of Foster v. Christensen, Tex.Com. App., 67 S.W.2d 246, 249: "The wife's separate ownership of property, although standing in the name of her husband or appearing on record to be community property, may be proven as any other fact by any competent evidence, including parol evidence, surrounding circumstances, and declarations of the parties." Hence, in our opinion, the controlling question presented by this appeal is whether there was any legal evidence raising the issues submitted to the jury.

Mrs. Alberta Boyd was the only child of Mr. and Mrs. Hunter who, during their lifetime, acquired a certain 200 acre tract of land. After the death of Mr. Hunter his surviving widow married J. B. Waddell. Thereafter, on June 25, 1890, J. B. Waddell...