Emery v. Barfield

• Decision Date: 29 April 1911
• Parties: EMERY et al. v. BARFIELD et al.
• Court: Texas Court of Appeals

138 S.W. 419

EMERY et al. v. BARFIELD et al.

Court of Civil Appeals of Texas. Ft. Worth.

April 29, 1911.

Rehearing Denied May 27, 1911.

Appeal from District Court, Taylor County; T. L. Blanton, Judge.

Trespass to try title by F. H. Barfield and others against S. E. Emery and others. Judgment for plaintiffs, and defendants appeal. Reversed and remanded.

Grogan & De Bogory, J. F. Cunningham, and Theodore Mack, for appellants. J. M. Wagstaff, for appellees.

SPEER, J.

The appellees sued appellants in trespass to try title to recover the west half of the Samuel Andrews survey, in Jones county, less 550 acres out of the original survey, and recovered an undivided one-half interest as the heirs of the community estate of Susan Sullivan and her deceased husband, J. M. Sullivan.

Appellants' first complaint is that the court erred in not directing a verdict for the defendants. But if there were merit in this contention, which we think there is not, yet a sufficient answer is that no such instruction was requested. If there was any error in submitting question No. 1 to the jury, it appears to be to the prejudice of appellees, rather than appellants.

As we view the case, the most important issue was submitted in the following form: "Question Second. At the time said J. M. Sullivan conveyed said land by a quit-claim deed to Susan Sullivan in December, 1891, did same become her separate property, or was it community property? In answering the above questions, I charge you that the effect of said deed was to make said property the community property of said two spouses, unless at the time of the execution thereof the said Mrs. Susan Sullivan had sufficient separate property of her own out of which she could have discharged the mortgage of $2,500 specified in said deed to be assumed by her, and unless it was contemplated that she should pay off and discharge said mortgage out of her own separate funds, and such was so done by her. If at the time said deed was executed, the said Mrs. Susan Sullivan had separate property sufficient to satisfy said mortgage of $2,500, and it was then contemplated by the said J. M. Sullivan and herself that she was to satisfy and discharge the said $2,500 out of her said separate funds and property, and that she did so satisfy same, then such property conveyed in said deed became her separate property."

This is objected to as being an improper presentation of the law to appellants' prejudice; appellants basing their claim, as t...