Edsall v. Edsall

• Decision Date: 23 March 1951
• Docket Number: No. 2846,2846
• Citation: 240 S.W.2d 424
• Parties: EDSALL v. EDSALL.
• Court: Texas Court of Appeals

Page 424

240 S.W.2d 424

EDSALL v. EDSALL.

No. 2846.

Court of Civil Appeals of Texas, Eastland.

March 23, 1951.

Rehearing Denied May 4, 1951.

Wm. Andress, Jr., Dallas, for appellant.

L. D. Hawkins, Breckenridge, E. G. Thornton, E. H. Griffin, Olney, for appellee.

COLLINGS, Justice.

This is a divorce case brought by appellant, Lucile Edsall, against appellee, Arthur B. Edsall. Upon a trial before the court without a jury, judgment was entered granting appellant a divorce and decreeing the status and division of the property. The basis of Lucile Edsall's complaint on this appeal is the manner of the division of the property.

The parties were married on July 12, 1939 and lived together as husband and wife for about ten years. No children were born to the union. At the time of the marriage, Arthur B. Edsall owned 1,290 acres of land on which he owed about $3,000.00, his community interest in about 180 cows, bulls and calves which had belonged to him and his deceased first wife, and various farm implements, tools and supplies, including a new Chrysler automobile.

In the first point presented by appellant, it is contended that the court erred in not holding three tracts of land acquired during the existence of the marriage relationship by deeds which did not recite that the tracts acquired were the husband's separate property or that they were paid for by his separate funds, were community property.

Property purchased during the marriage relationship is presumed to be community property and the burden of proving the contrary rests upon the party asserting such fact. Wilson v. Wilson, Tex.Civ.App. 200 S.W.2d 258; Lindemood et al. v. Evans, Tex.Civ.App., 166 S.W.2d 774 (Writ Ref.); Gibson v. Gibson, Tex.Civ.App., 202 S.W.2d 288; Davis v. Duncan, Tex.Civ.App., 102 S.W.2d 287; Epperson et al. v. Jones et al., 65 Tex. 425; Hardee, Sheriff, v. Vincent, 136 Tex. 99, 147 S.W.2d 1072.

The status of property so acquired during marriage relationship is fixed by the facts of its acquisition at the time thereof. Smith et al. v. Buss et al., 135 Tex. 566, 144 S.W.2d 529, and cases there cited.

Ordinarily, the presumption that property acquired during marriage is community is overcome by showing that it was paid for at the time of its acquisition out of the separate estate of either the husband or wife. Boyd et al. v. Orr, Tex.Civ.App., 170 S.W.2d 829.

The status of money borrowed during the marriage relationship is determined by the intention to re-pay out of the separate funds of the husband or wife or from their community fund. 23 Tex.Jur., 127; Blair v. Teel, Tex.Civ.App., 152 S.W. 878 (Writ Ref.).

The facts which determine the status of the property may be proven as any other fact by any competent evidence, including parol evidence, surrounding circumstances and declarations of the parties. Foster v. Christensen, Tex.Com.App., 67 S.W.2d 246.

The first tract of land in controversy is a 100 acre tract acquired by appellee, Arthur B. Edsall on March 3, 1941, by deed from his son, Arthur Ben Edsall, Jr., and wife. The material facts concerning the acquisition of such tract are as follows: Ray Edsall, appellee's brother, owned 295 acres of land which Arthur Ben Edsall, Jr., appellee's son by a former marriage, desired to purchase but was unable to do without securing a loan upon said property. Ray Edsall was unwilling to sell the land on credit or to wait upon the proceedings required by the loan to get his money. On February 28, 1941, appellee borrowed $3,700.00 from The First National Bank in Throckmorton and signed a note therefor. From this loan he paid his brother, Ray Edsall, $3,639.60 and received a deed to the 295 acres, which deed is dated January 21, 1941, but was not acknowledged by Ray Edsall's wife until April 8, 1941. The instrument recites a consideration of $3,750.00 cash paid and contained no recitation that such consideration was paid from the separate funds of Arthur B. Edsall nor did the deed recite that the land was conveyed to him as his separate property.

By a deed dated and acknowledged March 3, 1941, appellee and appellant conveyed this same land to his son, Arthur Ben Edsall, Jr., for a recited consideration of $3,750.00 of which $1,250.00 was cash and the balance represented by a note in the sum of $2,500.00 payable to appellee, Arthur B. Edsall, on or before September 3, 1941. There was no recitation in this instrument concerning the status of the land, the money received or the note payable to appellee. On the same day, March 3, 1941, Arthur Ben Edsall, Jr. and wife, conveyed to Arthur B. Edsall the 100 acre tract of land in controversy reciting a consideration of $1,250.00 cash, but there was no recitation in the deed concerning the status of the property conveyed. Appellee's bank statement shows that on June 9, 1941, he deposited $2,280.00 in The First National Bank of Olney and on June 17, 1941, he deposited $227.00 or a total of $2,507.00 in such bank. Appellee testified that such amounts were paid to him by the Olney Federal Land Bank Association on behalf of his son, and were in payment of the balance due on the purchase price of the 295 acre tract.

On March 7, 1941, appellee, Arthur B. Edsall, executed a deed by which he sold a house in Olney, Texas which he had inherited from his mother for $4,000.00. He deposited such amount in a bank account carried in his name in The First National Bank at Olney. At the time of and immediately prior to the deposit of the proceeds from the sale of such house, he had on deposit in such bank the sum of $34.95. On the same day he drew a check on The First National Bank at Olney and paid The First National Bank at Throckmorton the sum that he had borrowed in order to pay his brother Ray for the 295 acre tract of land.

The finding of the court concerning such 100 acre tract was as follows: 'The court finds that 100 acres of land described * * * was acquired during the time of the marriage, but was acquired wholly by the expenditure of the separate funds of the defendant, Arthur B. Edsall. The Court funds that this 100 acres of land was acquired on March 3, 1941, from Arthur Ben Edsall, Jr., a son of the defendant, and for a consideration of $1,250.00. That shortly before March 3, 1941, the defendant purchased from his brother, Ray C. Edsall, 295 acres of land, and that such purchase was made on behalf of his son, Arthur Ben. Edsall, Jr., and as a matter of convenience. The 295 acres was acquired for a cash consideration of $3,639.40 and was paid by a check drawn on The First National Bank of Throckmorton, Texas, dated February 28, 1941. On February 28, 1941, the defendant borrowed from said bank the sum of $3,640.00, and this money was used in paying for the 295 acres of land. The $3,640.00 loan was repaid to said bank from the sale of a house and lot in Olney, which was the separate property of the defendant, being owned by him long prior to his marriage to plaintiff. The Olney house was sold for a cash consideration of $4,000.00, which said amount was deposited in The First National Bank, Olney, Texas, on March 7, 1941, there being at such time on deposit in said bank to the credit of the account the sum of $34.95. On March 9, 1941, a check for $3,640.00 with accrued interest was drawn on the account at the Olney bank, and the debt to the Throckmorton bank hereby paid. Shortly thereafter, the defendant and his wife conveyed the 295 acre tract of land to the defendant's said son, and in return the said son and his wife conveyed to the defendant the particular 100 acres of land in question for $1,250.00, and an arrangement was made whereby an additional sum was paid to the defendant from the proceeds of a loan placed upon land owned by the son, shortly theretofore sold to a man by the name of Manuel. The Olney Federal Land Bank Association paid to the defendant $2,507.00, which was the additional sum agreed upon by the defendant, and his said son. This sum of $2,507.00 thus received by the defendant and paid to him at the direction of his said son, plus the 100 acres of land deeded to the defendant by his said son, valued at $1,250.00, was in full payment of the 295 acres of land theretofore deeded by the defendant and his wife to the said son.'

In our opinion such findings of fact are supported by the evidence and the 100 acre tract in question became the separate property of appellee, Arthur B. Edsall at the time it was acquired by him. Appellee borrowed the money to pay for the 295 acre tract and repaid the loan with funds derived from the sale of separate property. Under authorities hereinabove cited, if he had the intention at the time he borrowed such purchase price and bought such tract to repay same with his separate funds, then such 295 acre tract became his separate property. The evidence fully justices the conclusion that appellee had the intention to so repay the loan from separate funds. There can be no question but that a portion of the value of the 295 acre tract ($1,250.00) was the full consideration for the purchase of the 100 acre tract.

A tract of approximately 65 acres (64.88) acquired by appellee from Mrs. Patti Anderson on February 5, 1947, is also in controversy and the material evidence concerning the acquisition of this tract is as follows: The deed by which the tract was acquired recited a consideration of $1,946.46 and there was no recitation that such sum was paid from appellee's separate estate. The evidence justifies the conclusion that the consideration consisted of $1,660.00 derived by converting into cash two war bonds and by securing a loan of $300.00 from appellee's brother, Ray C. Edsall. Appellee testified that the two bonds were purchased with $1,500.00 paid by a check on The First National Bank in Olney on June 12, 1941, and was part of the money paid to him for his son by the Olney Federal Land Bank Association, as hereinbefore set out. In our opinion the evidence justifies the finding of the cour...