Dakan v. Dakan

Decision Date10 June 1932
Docket NumberNo. 965.,965.
Citation52 S.W.2d 1070
PartiesDAKAN et al. v. DAKAN.
CourtTexas Court of Appeals

Appeal from District Court, Eastland County; Geo. L. Davenport, Judge.

Suit by Mary A. Dakan against C. B. Dakan and others. From a judgment in favor of plaintiff, defendants appeal.

Reversed and remanded.

Conner & McRae, of Eastland, and Bills & Hazel, of Littlefield, for appellants.

Vickers & Campbell, of Lubbock, and O. F. Chastain, of Longview, for appellee.


This suit by Mary A. Dakan, surviving second wife of G. W. Dakan, deceased, brought against the children of G. W. Dakan by his former marriage (the husband of one being joined pro forma), sought, in the first place, to establish that five described tracts of land and certain household goods were community property of plaintiff and G. W. Dakan, and to have partition thereof in kind, or, in the alternative, sale thereof to effect a partition. In the second place, and in the alternative, in case the property was found to be not community but separate property of G. W. Dakan, it was sought to establish a charge and lien against same in favor of the community estate of plaintiff and G. W. Dakan for the value of improvements in the sum of $15,000, and in favor of the separate estate of plaintiff for the value of improvements upon lot 7, block A-2 of the city of Eastland in the amount of $1,750. Upon this alternative claim, the prayer of plaintiff was that "it be determined the amount of the community funds, as well as separate estate of your petitioner that have been used in the erection and construction of said improvements and if your petitioner be denied the right to establish title to said land or any portion thereof because of such facts, then that her claim or interest be determined and that a lien be established and decreed against all or such portion of such property and estate adjudged as defendants' as may be necessary or proper, in the judgment of the court, to properly and fairly protect the rights of your petitioner with an order of foreclosure against the same in the usual form, both as to her community share or interest therein, as well as for separate advancements made by her to said estate as herein alleged."

The defendants in their answer contended that all the property except the homestead (lots 34 and 36, block B of Tindall subdivision in Eastland), and lots 1 and 2 in block 26 in the town of Christoval, was the separate property of G. W. Dakan. That G. W. Dakan had disposed of all his separate and community property by will in such way as to put plaintiff to an election to accept or not under the will, and that she had elected to accept under the will. It was denied that any community funds had been used in the improvement of the separate property of G. W. Dakan, or that any separate property of plaintiff had been so used except $1,700 upon lot 7, block A-2, which it was alleged had been repaid.

The jury in answer to special issues found that community funds of plaintiff and G. W. Dakan in the sum of $6,116.70, and separate funds of plaintiff in the sum of $1,750 had gone into the improvements upon said lot 7, block A-2, which lot was of the value of $5,000 and improvements thereon of the value of $10,000; that no separate funds of G. W. Dakan had been used in the improvement of said property; and that the $1,750 had not been repaid to plaintiff. They found that $1,260 community funds and no separate funds of G. W. Dakan had gone into the improvements of the homestead (that is, lots 24 and 36, block B) and that the purchase price of the lot—$250, had been paid out of the separate funds of plaintiff, and the present market value of the lots without the improvements was $400 and with the improvements was $1,800. The jury found that $350 community funds and no separate funds of G. W. Dakan had gone into the purchase and improvement of lots 1 and 2, block 36, town of Christoval, the fair market value of which lots was $125 without the improvements and $350 with the improvements. They further found that community funds in the amount of $165 had gone into improvements upon lots 4 and 5 in block 63 in the town of Stamford (the separate property of G. W. Dakan), the present value of which lots was $200 without the improvements, and $700 with the improvements.

The trial court found as a question of law that plaintiff had not elected to take under the will, and based upon said finding and the verdict of the jury adjudged in favor of plaintiff a lien upon lot 7 in block A-2, Eastland, for $4,808.35 (being one-half of $6,116.70 plus $1,750); adjudged the homestead to be community property and decreed a lien against same in favor of plaintiff for $125, subject, however, to the use and occupancy of the property by plaintiff as a homestead; adjudged the Christoval property to be community property, that it was not susceptible of partition in kind, and ordered its sale to make partition; adjudged a lien in favor of plaintiff for $82.50 on the Stamford property. Separate foreclosure and sale of all of said property was ordered to satisfy the liens adjudged. The judgment further generally decreed that none of the lands was susceptible of partition in kind and ordered sale to make partition. From this judgment defendants have appealed.

Appellants urge fifty-six propositions under sixty-four assignments of error. It would unduly extend the opinion to undertake separate discussion or even separate mention of all of them.

We think the trial court correctly concluded as a matter of law that plaintiff had not bound herself by an election to take under the will. To estop herself by such an election it was not only necessary that she have claimed the benefits given by the will (which it may be conceded she did), but also that she have given up some right or some interest in property as inconsistent with a claim under the will. According to the undisputed evidence all of the property was the separate property of G. W. Dakan except the homestead in Eastland and the little summer home in Christoval. The verdict of the jury, interpreted by the undisputed evidence, shows that the homestead was the separate property of plaintiff, the land having been wholly paid for with $250 of her separate money. Hayworth v. Williams, 102 Tex. 308, 116 S. W. 43, 132 Am. St. Rep. 879. Upon disputed evidence the jury found that the Christoval property was community. The will did not purport to make disposition of any specific property of the plaintiff. As said in Gilroy v. Richards, 26 Tex. Civ. App. 355, 63 S. W. 664, 666: "In order to put the donee of a benefit under a will to an election, two things are essential: (1) The testator must give property of his own, and (2) he must profess to dispose of property belonging to the donee." Under this rule we think plaintiff was not put to an election. Avery v. Johnson, 108 Tex. 294, 192 S. W. 542.

We will next consider whether the trial court erred in decreeing a lien upon the separate property of G. W. Dakan (bequeathed to certain of the defendants), with foreclosure and order of sale, in order to accomplish a reimbursement to plaintiff of her one-half of community funds and certain of her separate funds used in making improvements upon such separate property. It is well settled that the separate estate of one member of the community must reimburse the community for any proper improvements made in good faith upon his or her separate estate with community funds. Furrh v. Winston, 66 Tex. 521, 1 S. W. 527, 529; Maddox v. Summerlin, 92 Tex. 483, 49 S. W. 1033, 50 S. W. 567; Bullock v. Sprowls (Tex. Civ. App.) 54 S. W. 657; Id., 93 Tex. 188, 54 S. W. 661, 47 L. R. A. 326, 77 Am. St. Rep. 849; Summerville v. King, 98 Tex. 332, 83 S. W. 680; Clift v. Clift, 72 Tex. 149, 10 S. W. 338; Welder v. Lambert, 91 Tex. 510, 44 S. W. 281.

It is equally as well settled that the separate estate of one spouse or the community estate of both of them is chargeable with the value of improvements made thereon by the separate funds of the other spouse. Schmidt v. Huppmann, 73 Tex. 112, 11 S. W. 175; Moore v. Moore, 28 Tex. Civ. App. 600, 68 S. W. 59; Miller v. Odom (Tex. Civ. App.) 152 S. W. 1185; 31 Cyc. 222.

A question not so well settled is how such a charge or obligation to make reimbursement may be enforced. Undoubtedly the charge may be simply a debt, and when so it can be established as such, and the property, if not otherwise protected by some exemption, be subjected to the payment thereof. Day v. Stone, 59 Tex. 612; Jackson v. Jackson (Tex. Civ. App.) 283 S. W. 923; Moore v. Moore, 89 Tex. 29, 33 S. W. 217. But it is not always or necessarily a debt in the ordinary sense of the word. Beneficiaries of the obligation may not always, as creditors, have the land seized and sold as under execution to enforce payment. Hendricks v. Snediker, 30 Tex. 307; Schwartzman v. Cabell (Tex. Civ. App.) 49 S. W. 113; Blum v. Rogers, 71 Tex. 668, 9 S. W. 595. When enforceable, the action to enforce is not subject to limitation statutes. Welder v. Lambert, 91 Tex. 510, 44 S. W. 281. We have, after careful consideration, concluded that, when the obligation to reimburse is not a debt, enforceable as such, it is of the same nature and governed by the same principles as the equity which one tenant in common has who makes improvements upon the common property. If so, it can be enforced only in the partition of property as to which a cotenancy exists. This conclusion results from a study of many decisions, but principally of the following: Kalteyer v. Wipff, 92 Tex. 673, 52 S. W. 63, 68; Hanrick v. Gurley, 93 Tex. 458, 54 S. W. 347, 355, 55 S. W. 119, 56 S. W. 330; Welder v. Lambert, 91 Tex. 510, 44 S. W. 281, 286; Clift v. Clift, 72 Tex. 144, 10 S. W. 338; Schmidt v. Huppmann, 73 Tex. 112, 11 S. W. 175, 177...

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3 cases
  • Weeks v. Vandeveer
    • United States
    • Ohio Court of Common Pleas
    • April 22, 1966
    ... ... See Dakan v. Dakan, 125 Tex. 305, 83 S.W.2d 620 (1935), affirming 52 S.W.2d 1070 (Tex.Civ.App.1932) (provision for payment of taxes on the home place); ... ...
  • Aman v. Cox
    • United States
    • Texas Court of Appeals
    • July 10, 1942
    ... ... Wipff, 92 Tex. 673, 52 S.W. 63, 68." Dakan v. Dakan, 125 Tex. 305, 319, 83 S.W.2d 620, 628 ...         Also, see Dakan v. Dakan, Tex.Civ. App., 52 S.W.2d 1070, 1074; Kalteyer v ... ...
  • Maryland Casualty Co. v. Hendrick Memorial Hospital
    • United States
    • Texas Court of Appeals
    • July 10, 1942
    ... ... lite only in a divorce suit, or of the right of a tenant in common to assert equitable charges only in a partition suit, such as discussed in Dakan v. Dakan, Tex.Civ.App., 52 S.W.2d 1070, and Aman v. Cox, Tex.Civ.App., 164 S.W. 2d 744 ...         If it be granted that the physician, ... ...

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