Dean v. First Nat. Bank of Athens, 675

• Decision Date: 19 April 1973
• Docket Number: No. 675,675
• Citation: 494 S.W.2d 222
• Parties: Carolee Baskin DEAN, Appellant, v. The FIRST NATIONAL BANK OF ATHENS, Appellee.
• Court: Texas Court of Appeals

Page 222

494 S.W.2d 222

Carolee Baskin DEAN, Appellant, v. The FIRST NATIONAL BANK OF ATHENS, Appellee.

No. 675.

Court of Civil Appeals of Texas Tyler.

April 19, 1973.

Rehearing Denied May 10, 1973.

R. A. Renfer, Jr., Dumas, for appellant.

Jack T. Life, Athens, for appellee.

McKAY, Justice.

The appellee, The First National Bank of Athens, brought this suit against Wayne Dean and his wife Carolee Baskin Dean, seeking recovery on three notes executed by Wayne Dean to the bank, and seeking to subject certain real property, alleged to be community, located in Henderson County to the payment of the debt on the notes. The bank attached the property at the time the suit was filed, and asked for judgment against Wayne Dean for the amount due on the notes, and against Wayne Dean and Carolee Baskin Dean to subject the property to the payment of the debt and to foreclose the attachment lien.

Wayne Dean failed to appear or answer. Carolee Baskin Dean answered by specially denying that she signed the notes sued upon or that she was liable for them, and by general denial. Trial was had before the court without a jury, and judgment was rendered for $22,090.45 against Wayne Dean; the three notes were found to be community debts; the four tracts of land were found to be community property, and the bank's attachment lien was foreclosed on two of these tracts. From that judgment, Carolee Baskin Dean appeals.

Appellant brings two points by which she contends that (1) the trial court erred in holding the property in question was community property because in a divorce case between appellant and Wayne Dean, the District Court of Sherman County had rendered judgment that such property was the separate property of Carolee Baskin Dean, and (2) that the trial court also erred in holding that she was estopped to claim such property to be her separate property.

Carolee Baskin Dean filed a suit for divorce from Wayne Dean in Sherman County, Texas, the date of suit not being in the record. The bank filed suit in the instant case against both Deans in Henderson County on February 19, 1971. A divorce decree was rendered by the District Court in Sherman County on April 5, 1971, dissolving the marriage between Carolee Baskin Dean and Wayne Dean, and awarding and setting aside to Carolee Baskin Dean as her separate property the real estate involved in this case--a 108.27-acre tract and a 76.2-acre tract. The divorce judgment was not plead by appellant Dean, but during the trial a certified copy was introduced in evidence over the objection of the bank that such divorce judgment was rendered after the bank had brought suit against both Deans alleging the property to be community and attaching it, and that the bank was not a party to the divorce action and was not bound by it.

The trial court made and filed findings of fact and conclusions of law. It was found by the court that the three notes were signed by Wayne Dean for money borrowed from the bank to buy cattle; that two notes were secured by security agreements covering cattle and one note was unsecured; none of the notes was signed by Carolee Baskin Dean; that all negotiations with the bank for the loans were with Woodrow Walker, president of the bank, who had known Wayne Dean in prior years when he lived in Henderson County; that Wayne Dean had moved to Stratford, Texas, several years prior to 1970, and had been living there with his wife, Carolee Baskin Dean. On several occasions prior to August 10, 1970, the date of the first note, Wayne Dean had informed Walker that he was buying several tracts of land in and moving back to Henderson County to engage in the cattle business. On August 10, 1970, Wayne Dean, accompanied by his wife, Carolee Baskin Dean, went into The First National Bank of Athens for the purpose of opening a joint bank account establishing credit and borrowing money; that representations were made on such occasion that Wayne Dean had purchased or contracted to purchase several tracts of land which were identified, and were the same tracts described in bank's petition, and that Wayne Dean had assets totalling $532,700.00 consisting of land, cattle, and other property which was described in detail and that his net worth was $408,300.00; that such representations were false and made to induce the plaintiff to extend credit to Wayne Dean and lend the money evidenced by the notes.

The trial court further found that such representations did in fact induce Walker to extend credit and make such loans, and, but for such representations Walker would not have made such loans; that Carolee Baskin Dean participated in such representations in that she was present, heard the same, did not object or protest or dispute any of such representations, and a financial statement was prepared in her handwriting which detailed such assets as represented and furnished the bank at Walker's request; that Carolee Baskin Dean benefitted by such representations in that they induced Walker to make the loans, the proceeds of which were community property and were deposited in the joint account; that the notes sued on by the bank were community debts; that the four tracts of land described in bank's petition and which were attached by bank were all taken in the name of Wayne Dean and wife, Carolee Baskin Dean, and recited that the consideration was paid by them; (two of the four tracts were disposed of by foreclosure and sale before judgment) that such tracts were community property of Wayne Dean and wife, Carolee Baskin Dean, for all purposes of the lawsuit; that there is no evidence that Carolee Baskin Dean filed any schedule of her separate property in Henderson County as contemplated by Sec. 5.03 of the Family Code, V.T.C.A.; that the bank had no notice that any of the property attached by it was the separate property of Carolee Baskin Dean, if it was, and had no reason to believe it was not the community property of Wayne and Carolee Baskin Dean.

Other findings by the court were that the bank was not a party to the divorce suit; that Carolee Baskin Dean did not assert res judicata as a defense nor did she plead the divorce judgment as a bar or as an estoppel as required by Rule 94, Texas Rules of Civil Procedure; that the divorce judgment was obviously obtained by collusion to defraud the bank and defeat its efforts to collect its notes and subject the property attached to the payment of the notes.

Conclusions of law made by the trial court were (1) that the bank was entitled to a personal judgment on the notes sued on against Wayne Dean; (2) that Carolee Dean is not personally liable on the notes; (3) that the debts evidenced by the notes were the community debts of Wayne and Carolee Baskin Dean; (4) that the property attached was and is community property of Wayne and Carolee Baskin Dean for all purposes of this suit, and the bank is entitled to subject said property to the payment of the debts; (5) that the Writ of Attachment created a valid attachment lien against the property; (6) the attachment lien still exists and is in full force and effect and is a valid and subsisting attachment lien as to the 108.27-acre tract and the 76.2-acre tract, and the bank is entitled to judgment against both Wayne Dean and Carolee Baskin Dean foreclosing its attachment lien on said tracts; (7) that the bank had the right to assume that the property was community property since no schedule of separate property had been filed by Carolee Baskin Dean in Henderson County, and the bank occupied the position of 'creditor without notice,' (8) that since the bank was not a party to the divorce suit,...