Dority v. Dority

• Decision Date: 12 February 1903
• Citation: 71 S.W. 950
• Parties: DORITY et al. v. DORITY.
• Court: Texas Supreme Court

Page 950

71 S.W. 950

DORITY et al. v. DORITY.

Supreme Court of Texas.

February 12, 1903.

Certificate of dissent from court of civil appeals of First supreme judicial district.

Action by Helen Dority against B. P. Dority and others. From a judgment in favor of plaintiff, defendants appealed to the court of civil appeals, where the judgment was affirmed in part. 70 S. W. 338. On certified questions on dissent. Affirmed.

G. R. Scott, Jas. W. Durst, R. P. Clarkson, D. W. Doom, and D. H. Doom, for appellants. McCampbells & Stayton and J. C. Scott, for appellee.

WILLIAMS, J.

This case comes to us upon certificate of dissent from the court of civil appeals for the First district. The action was brought in the district court by Helen Dority against her husband, B. P. Dority, and James W. Durst, A. A. Thompson, and R. P. Clarkson, for the purpose of setting aside leases of land owned by Mrs. Dority in her separate right, which had been made by her husband to the other defendants, and of establishing her own right to manage and control her separate estate as a feme sole, and to enjoin her husband from interfering therewith. The district judge held that the leases in question were void, because made in excess of the authority of the husband over his wife's separate property; that, under the facts shown, they operated as a legal fraud upon the rights of Mrs. Dority; also, in substance, that Mrs. Dority was entitled, under the circumstances developed, to the management and control of her own property; and that her husband should be restrained from interfering therewith. The majority of the court of civil appeals agreed with the trial court upon all of these points, and Associate Justice Pleasants dissented from the decision upon each of them. A statement of the facts of the case is essential to an understanding of the points involved in the dissent:

The plaintiff and defendant B. P. Dority were married in 1873, and have acquired the property in question in such way, as held by the court of civil appeals, as to make it the separate property of the wife. No question as to this is now before us. The evidence tends to show that for several years before their separation, and until the present time, plaintiff has been in very delicate health, while her husband, a wheelwright by trade, has been very strong, healthy, and able to work when he could secure employment. Plaintiff raised poultry, and, with cows, which were her separate property, conducted a dairy, and, from the products of her industry, earned, in the main, her support. Her husband earned little, and, up to two years before the trial, contributed to his wife's maintenance only a few groceries. For two years before the trial he contributed nothing. At all times he has had the management of his wife's ranch, which constituted the chief part of her separate property, and has received whatever revenue has been derived from it. They lived together on their homestead in Corpus Christi until their separation took place. Dority, while contributing little to the support of his wife, has made no claim to any part of her personal earnings. This had been the condition of affairs between them for some years before 1899. In that year the taxes upon her property and upon the homestead for the year 1898 were delinquent, and the property was advertised for sale. Of this fact Dority notified his wife; saying at the same time that he could not pay the taxes, and did not know where they would get the money to meet the demand. In order to meet it, Mrs. Dority executed a lease of her ranch to one Keyes at $200 per year. Her husband refused to assent to it, and would not permit the lessee to take possession; considering his wife's action a reflection upon him. This, as she says, was the immediate cause of their separation. She informed her husband that she would not longer live with him, and they have since that time lived apart. This occurred October 26, 1899, and Mrs. Dority brought suit for divorce November 10, 1899, upon the ground of cruel treatment, excesses, and outrages. She succeeded in the district court, but the court of civil appeals reversed the judgment in her favor, holding that the evidence showed no legal ground for divorce, and remanded the cause, which she dismissed May 16, 1901. 62 S. W. 106. In the meantime the parties had occupied apartments in their home, living apart, until January, 1901, and Dority had continued to assert control of the ranch and some other property; and a few days after the separation he executed to defendant Durst a lease, bearing a date anterior to the separation, by which he let to Durst the ranch for one year, with the privilege in Durst of taking it for two years longer, in consideration of $10 per month, and the privilege to Dority of pasturing therein some 90 head of horses, his separate property, and 15 or 20 cattle, community property. Dority thereafter sold the horses to Durst, and the latter held the ranch until about December 23, 1900, and paid to Dority $150 rent, all of which was applied by him to payment of attorney's fees in his litigation with his wife. In December, 1900, Dority, Durst, and defendant Thompson orally agreed that the last named should take the unexpired portion of the Durst lease from December 23, 1900, to October 23, 1902; recognizing Durst as his landlord, but paying to Dority rent at $20 per month, and agreeing to make improvements at the rate of $5 per month. Thompson still held possession at the time of the trial of this case, and had paid to Dority $80 of rent; payment of the balance having been stopped by injunction in the divorce suit. The sum paid was also appropriated by Dority to his own use. In January, 1901, Dority left home, and went to Mexico, where he remained until May 7, 1901. He then returned, and offered to resume relations with his wife, and to live with her as her husband; but, upon her refusal to have anything to do with him, he left her in possession of the homestead, and has not since molested her. On the 21st of May, 1901, Thompson being still in possession of the ranch under the agreement, lasting until October, 1902, Dority executed to defendant Clarkson a lease of the property for 10 years next ensuing, with privilege in the lessee of renewal for 5 years, at rental of $25 per month. It was orally agreed that Clarkson was not to have possession until the expiration of Thompson's lease. The lease also contained the provision that the lessee should, out of the rent, pay all expenses and costs incurred in resisting the attempt of any person to recover possession of the land. Dority assigned this lease contract to pay his attorney's fees and personal debts for more than $650, and a note given for money borrowed to defend a suit with other parties involving Mrs. Dority's title to the land. All of these leases were made without the knowledge or consent of Mrs. Dority. She continued, after the separation, to earn money as before, though suffering greatly from chronic sickness and becoming continually weaker and less able to work. Being defeated, as stated, in her effort to raise means to pay the taxes through a lease of her land, she borrowed the money, and repaid it out of her earnings, and thus paid the taxes due up to the time of the trial upon the homestead and her separate property, while her husband was controlling the ranch and diverting its revenues to other purposes. During this period she has received nothing whatever from him, but has become indebted for various kinds of necessaries. Dority now has no property except an interest in the homestead and in the household and kitchen furniture, which is community property in use by Mrs. Dority. It is found by the court of civil appeals that there is no reasonable probability of the parties ever living together again. The record shows that, in addition to her suit for divorce, plaintiff, on the 13th day of November, 1899, instituted in the county court, under article 2972, Rev. St., a proceeding against her husband to enforce the appropriation by him to her support of a portion of the proceeds of her lands. This he resisted and defeated on the ground that the property had not for the five years before produced any revenue which had been appropriated by him.

The questions upon which the difference of opinion exists may be stated thus: First. Did the power of "sole management" given by the statute to the husband over the wife's separate property include the power, if fairly exercised, to make leases for a longer term than one year? Second. If so, do the facts warrant the conclusion that the power was exercised in this case in such manner as to constitute a fraud upon the rights of the wife, which entitled her to maintain an action to have the leases set aside? Third. Do the facts justify the decree enjoining Dority from interfering with his wife's separate property?

1. The decision of the first question depends upon whether leases such as those in question are conveyances, within the meaning of article 635, Rev. St., requiring the husband and wife to join in "the conveyance of real estate the separate property of the wife," or are authorized by article 2967, giving to the husband "the sole management" of the wife's property during marriage. Article 624 (a part of the same title with article 635) provides: "No estate of inheritance or freehold, or for a term of more than one year, shall be conveyed from one to another, unless the conveyance be in writing." The majority of the court of civil appeals, construing the two articles together, held that the joint action of husband and wife was essential to the creation of leases for longer terms than one year, for the reason that article 624 declared such terms to be "estates in land," and the instruments creating them "conveyances," and article 635 applied to all conveyances of the real estate of the wife. The dissenting justice held that the "conveyances" intended in article 635 were...