Earhart v. Agnew
| Decision Date | 20 December 1916 |
| Docket Number | (No. 1040.) |
| Citation | 190 S.W. 1140 |
| Parties | EARHART et al. v. AGNEW et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Lubbock County; W. R. Spencer, Judge.
Action by J. W. Agnew against S. M. Earhart, with the Lubbock National Bank as garnishee, in which Mrs. S. M. Earhart intervened and claimed the fund impounded by garnishment proceedings. Judgment for plaintiff, and defendant and intervener appeal. Affirmed.
R. A. Sowder, of Lubbock, for appellants. W. F. Schenck and Roscoe Wilson, both of Lubbock, and Chas. C. Triplett, of Brownfield, for appellees.
The appellee Agnew sued T. O. Earhart, in the district court of Lubbock county, to recover the amount of a certain note made by Earhart, payable to Agnew, and at the time of filing the suit procured the issuance and service of a writ of garnishment against the Lubbock State Bank. The bank answered that it had in its hands $1,205.20. Mrs. S. M. Earhart, wife of T. O. Earhart, intervened in the garnishment proceedings, claiming the fund impounded. Special issues were submitted to the jury and judgment was rendered that T. O. Earhart was the owner of the fund; that he was indebted to J. W. Agnew in an amount exceeding the sum held by the bank, and the bank was ordered to pay the fund in its hands to plaintiff. The following are the issues submitted to the jury, with the answers returned thereto:
No. 1: "Did T. O. Earhart and his wife, S. M. Earhart, at the time they moved off the south 200 acres of survey No. 22, block D 2, in Lubbock county, Texas, and acquired and moved onto a place in the town of Lubbock, in the year 1909, intend to return and occupy the said section 22, block D 2, as a homestead?" Answer: "No."
No. 2: "Did S. M. Earhart and T. O. Earhart, or either of them, ever move back and occupy the south 200 acres of section No. 22, block D 2, as their homestead, after they moved away from the same to the town of Lubbock, in the year 1909, until they sold the same to A. Symes, on June 16, 1911?" Answer: "No."
No. 3: "Was section 22 abandoned by T. O. Earhart as a home, with the intention never to return and live thereon at the time they moved from the same in the year 1909?" Answer: "Yes."
No. 4: "Did T. O. Earhart and S. M. Earhart abandon 200 acres out of the south part of section 22 as a home at any time prior to their sale to A. Symes on June 16, 1911?" Answer: "Yes."
No. 5: "Was the transfer of the note, the proceeds of which are garnished in this suit, a gift from T. O. Earhart to S. M. Earhart?" Answer: "No."
No. 6: "Was the debt sued on by the plaintiff against said T. O. Earhart a community debt — that is, a debt contracted during the existence of the marriage relations between them?" Answer: "Yes."
No. 7: "Did S. M. Earhart, at the time she signed the deed to A. Symes on June 16, 1911, do so upon the condition that she was to have the value of the 200 acres out of the south half of section 22, block D 2?" Answer: "Yes."
No. 8: "Did the intervener, S. M. Earhart, or some one for her, have the open, notorious, exclusive, and adverse possession of the note due January 1, 1915, for a period of two years prior to January 1, 1915?" Answer: "No."
No. 9: "Was T. O. Earhart insolvent at the time it is alleged he indorsed the notes introduced before you, if he did so, to his wife S. M. Earhart?" Answer: "No."
Appellants contend, first, that the court should have rendered judgment in favor of Mrs. S. M. Earhart on the special answers and verdict of the jury. It is true, as contended, that the husband may lawfully transfer or give any of his property, or his interest in the community property, to his wife, provided he is solvent at the time. "The right of one to give his property, whether separate or community, to another, even though it be his marital consort, is absolute where the principle is not violated that one must be just before he is generous." Speer's Law of Marital Rights, § 116; Bruce v. Koch, 40 S. W. 626; Cheek v. Herndon, 82 Tex. 146, 17 S. W. 763; Kane v. Ammerman, 148 S. W. 815.
The finding of the jury, however, is that the note in question, the proceeds of which are held by the garnishment, was, as a matter of fact, never given to Mrs. Earhart by her husband. In response to interrogatory No. 7, the jury found that at the time she signed the deed with her husband, conveying the 200 acres to A. Symes, it was upon condition that she was to have the value of the land. There is no conflict between this finding and the conclusion of the jury that this note was never given to her.
It having been found that the 200 acres was not a homestead at the date of the Symes deed, there was no consideration for her signature as a sufficient conveyance might have been made by T. O. Earhart alone.
There is considerable evidence tending to show a gift of the note to Mrs. Earhart by her husband, but it is clear from the findings of the jury that they "did not bless it with credence." The note itself was payable to T. O. Earhart and prima facie was his property. It was apparently the opinion of the jury that the indorsement was not made at the time of its execution, as asserted by some of the witnesses. We are bound by these findings.
We were mistaken in our original opinion in basing our conclusions upon articles 3967 and 3968 of Sayles' Civil Statutes, since it has been held that choses in action are not "goods and chattels" within the meaning of such statutes (Schauer v. Von Schauer, 138 S. W. 145; Cowen v. First National Bank, 94 Tex. 547, 63 S. W. 532, 64 S. W. 778); and that delivery and possession by the donee of this character of property is not essential to the validity of the gift.
Under the second assignment it is urged that because appellees' ...
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Earhart v. Agnew
...the garnishment proceeding. From judgment for plaintiff, defendant and intervener appealed to the Court of Civil Appeals, which affirmed (190 S. W. 1140), and defendant and the intervener bring error. Judgment of the district court and Court of Civil Appeals reversed, and judgment rendered ......