Cummins v. Cummins

• Decision Date: 13 October 1920
• Docket Number: (No. 1697.)
• Citation: 224 S.W. 903
• Parties: CUMMINS et ux. v. CUMMINS.
• Court: Texas Court of Appeals

224 S.W. 903

CUMMINS et ux. v. CUMMINS.

(No. 1697.)

Court of Civil Appeals of Texas. Amarillo.

October 13, 1920.

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

Suit by J. M. Cummins and wife against Hazel Cummins. From a judgment for defendant, plaintiffs appeal. Affirmed.

R. T. Correll, of Perryton, and F. P. Works, of Amarillo, for appellants.

Allen & Allen, of Perryton, and H. E. Hoover, of Canadian, for appellee.

BOYCE, J.

This suit was brought by J. M. Cummins and his wife, against Hazel Cummins, to recover an undivided one-fourth interest in 158½ acres of land in Ochiltree county, Tex. The rights of the parties depend on the conclusion as to whether an undivided one-half interest in said land was the separate property of J. S. Cummins, deceased, or was part of the community estate of himself and his surviving wife, Hazel Cummins. The facts upon which the respective claims of the parties are founded are as follows:

J. S. Cummins and Hazel Cummins were married in October, 1916. In February, 1917, they acquired the 158 acres of land referred to. The consideration agreed to be paid for the land was the sum of $4,755, of which amount one-half was paid in cash, and consisted of funds the separate property of the said J. S. Cummins; the balance of the consideration was evidenced by three notes, executed by the said J. S. Cummins and Hazel Cummins. The deed conveyed the land to J. S. Cummins and Hazel Cummins. The notes referred to were paid in part by community funds and in part by separate funds of Hazel Cummins. J. S. Cummins died in October, 1918, leaving no children. The plaintiffs are the father and mother of the said J. S. Cummins, and claim that an undivided one-half interest in the land belonged to the separate estate of their son, and that they were entitled to one-half of such interest by inheritance.

The defendant, Hazel Cummins, testified that, after her marriage with J. S. Cummins, she and her husband discussed the question of acquiring a home and the ways and means by which they might pay for it; that the purchase of this particular property was discussed, and it was understood that the husband could secure from his father the money with which to make the cash payment, and that they were to work together and try to pay the balance out of their earnings on the farm, but that, in the event these were not sufficient, then the wife's father would assist them, and furnish the funds necessary to meet such deferred payments; that nothing was said in these discussions as to whether the husband was to have any separate interest in the land, and there was no intention that whatever Mrs. Cummins might put in would be separate. The cash payment referred to was procured by way of advancement from the father of J. S. Cummins. The first note was paid before it was due, and before the husband's death. The greater part of this payment was made with money which Mrs. Cummins received from her mother's estate; the balance of the payment being with community funds. In reference to this Mrs. Cummins testified: "We just put it all together, after we were married, and we paid the first note." The second note was paid by Mrs. Cummins' father, at the request of J. S. Cummins; the other note was paid after the death of J. S. Cummins, by Mrs. Cummins.

The case was tried before the court, and judgment rendered for the defendant.

Under the first three assignments it is asserted that under the undisputed facts a one-half interest in the land referred to belonged to the separate estate of J. S. Cummins, and would descend as such, and that the judgment based on a contrary conclusion, is without evidence to support it. The property having been acquired during the marriage relation, we must begin the consideration of the facts with the presumption that it is community property. Ordinarily, however, in the absence of any evidence of a contrary intention, the showing that a part of the initial payment constituted the separate property of the husband, would be sufficient to rebut the presumption that the property became the community property, and would require a holding that the husband owned a separate interest in the property in the proportion that his separate funds entered into the payment of the consideration therefor. Love v. Robertson, 7 Tex. 6, 56 Am. Dec. 41; Smith v. Bailey, 66 Tex. 553, 1 S. W. 628; Letot v. Peacock, 94 S. W. 1121; McClintic v. Midland Grocery Co., 106 Tex. 32, 154 S. W. 1157; Dixon v. Sanderson, 72 Tex. 359, 10 S. W. 535, 13 Am. St. Rep. 801; Braden v. Gose, 57 Tex. 41; Cleveland v. Cole, 65 Tex. 406. But in such cases, except where the deed itself by express terms declares the status of the property, whether the property be conveyed to the wife or to the husband, or to them jointly, the status may be controlled by the intention of the parties at the time of the taking of the title, and this intention may be ascertained by parol evidence of surrounding circumstances, contemporaneous declarations of the parties, and other admissible evidence that would tend to show what the intention of the parties was at such time. Presidio Mining Co. v. Bullis, 68 Tex. 581, 4 S. W. 862; Higgins v. Johnson, 20 Tex. 394, 70 Am. Dec. 394; Dunham v. Chatham, 21 Tex. 245-247, 73 Am. Dec. 228; Smith v. Strahan, 16 Tex. 324-325, 67 Am. Dec. 622; Baker v. Baker, 55 Tex. 577; Peters v. Clements, 46 Tex. 124; Baldridge v. Scott, 48 Tex. 189; Wren v. Howland, 33 Tex. Civ. App. 87, 75 S. W. 899; Speer on Married Women, par. 378; R. C. L. vol. 5, p. 848.

Applying these rules to the facts before us, we believe such facts are sufficient to warrant the finding of the court that it was the intention of J. S. Cummins and his wife that the property acquired by and deeded to them, under the circumstances stated, should become their common or community property. It is presumed, as we have already seen, that all property acquired during the marriage is community property; and this is true, whether the title be taken in the name of the husband or the wife, or in their joint names. But the decisions recognize that the presumption is stronger in some cases than in others. Higgins v. Johnson, 20 Tex. 394, 70 Am. Dec. 394. It is said in this case that the husband rarely has property conveyed to the wife, or to them jointly, and that the presumption of community ownership, in case of conveyance to the wife, is not as strong as where the conveyance is to the husband. It has been held that where the husband purchases property with his separate funds, and has the conveyance made to his wife, this fact alone is sufficient to show an intention to make the property her separate property. Dunham v. Chatham, 21 Tex. 245, 73 Am. Dec. 228; Smith v. Strahan, 16 Tex. 314, 67 Am. Dec. 622. And it is said that in every case the fact that the conveyance is made to...