O'Farrell v. O'Farrell

• Citation: 119 S.W. 899
• Parties: O'FARRELL v. O'FARRELL.
• Decision Date: 05 May 1909
• Court: Court of Appeals of Texas

119 S.W. 899

O'FARRELL v. O'FARRELL.

Court of Civil Appeals of Texas.

May 5, 1909.

Rehearing Denied June 2, 1909.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Bexar County; Arthur W. Seeligson, Judge.

Action by Francisca Flores De O'Farrell against Federico O'Farrell. From a decree for plaintiff, defendant appeals. Affirmed.

Clark & Lytle, for appellant. Salliway & McAskill and Selig Deutschman, for appellee.

NEILL, J.

The suit was by appellee against appellant for a divorce upon the grounds of abandonment and excesses. The plaintiff also prayed for the cancellation of a deed taken in appellant's name to certain real property and for a recovery of the land upon the ground that it was purchased with her separate estate. The defendant answered by general and special exceptions to plaintiff's petition, a general denial, and pleaded specially that the property sued for was not separate, but of the community estate of himself and plaintiff. Harry White intervened in the case claiming a judgment lien on the property; but, as he has not appealed from the judgment, the pleadings as between him and the original parties need not be stated. Certain of defendant's exceptions were overruled, the case was tried upon special issues submitted by the charge to the jury, and, upon its findings, a decree of divorce was awarded plaintiff, as well as a cancellation of the deed and judgment in her favor for the land claimed as her separate property. It was also adjudged that the intervener take nothing by his intervention. The appeal is from the decree of divorce, as well as from the adjudication as to the real estate.

Assignments of error first, second, third, sixteenth, and thirtieth question the sufficiency of the allegations in plaintiff's petition to support her suit for divorce upon the ground of abandonment. As there was another ground for dissolving the marriage alleged, submitted to and found by the jury in favor of the plaintiff, in regard to which neither the sufficiency of the petition nor the evidence to sustain the decree is questioned by any assignment of error, it would seem immaterial how the question raised by these assignments is decided, for, if it should be resolved in defendant's favor, the decree would safely stand upon the other ground which is not assailed. Section 3, art. 2977, Rev. St. 1895, provides that a divorce may be granted in favor of the wife, when the husband shall have left her for three years with intention of abandonment, or when he shall have abandoned her and lived in adultery with another woman. From this it is seen that abandonment by the husband is of two kinds. One is leaving her for three years with intention of abandonment. The other is abandoning her and living in adultery Neither the intention of abandonment, nor three years' absence, is essential to constitute the latter. Abandonment and living in adultery with another are all. Time, save such lapse after leaving his wife as is neces sary to constitute abandonment, nor intention, is a factor; but, as this character of abandonment was not submitted to the jury, we need not mention the allegations nor evidence regarding it only in so far as it may be necessary to ascertain whether the allegations of the first kind of abandonment were sufficient. The petition alleges that on "April 15, 1903, defendant abandoned plaintiff's bed and board and left the country for the republic of Mexico, where he now resides." If this were all, clearly it would not be sufficient, for the allegations are not necessarily inconsistent with the idea of unintentional abandonment, nor with abandonment for the statutory period. It might have been his desire for his wife to accompany him on his visit and be with him during his stay in Mexico; or, after he went there, he may have returned home and lived with her and again visited that country, for aught that appears from such allegations. But this is not all. The petition further alleges: That since he abandoned plaintiff, and while living in Mexico, he has openly and notoriously associated with lewd women; that only four months prior to the filing of plaintiff's petition he traveled in company with a prostitute on a train in Mexico, and in the cities of Mexico and Pueblo he was often seen in company with lewd women; that since April 1, 1903, when defendant abandoned plaintiff and left the country for Mexico, he has wholly failed to support or contribute anything towards her living expenses; that on the 15th day of January, 1905, after he abandoned plaintiff, he came from Mexico and occupied a room in her residence for several days, during which time he was continuously in a drunken condition and attempting to raise a row with her; and that at 2 o'clock at night on or about said date he broke the window blind of her house and came in through the window. We are inclined to the opinion that these allegations, coupled with those first recited, are sufficient to admit proof that defendant left plaintiff for three years with intention of abandonment; but, however this may be, the evidence fails to establish the allegations. On the contrary, it shows such a state of facts as disproves that he left plaintiff for three years with the intention of abandoning her.

The fourth, eighth, and ninth assignments of error are submitted together, and under them are asserted these propositions: "(1) Real estate conveyed by deed to either husband or wife during coverture is presumed to be community property, and, where the wife seeks to recover real property as her own separate property, the burden is upon her to allege and prove specific facts showing that her separate funds alone, unmixed with community funds, were used in paying for said property, and, where the pleading only states legal conclusions, special exceptions pointing out the defect should be sustained. (2) Where the wife attempts to make proof that her separate funds were used in the purchase of real property, asking judgment for the same as her own separate property, not having alleged specific facts showing what money or property of hers was used or how it became her separate property unmixed with community funds, such evidence should be excluded when objected to on the ground that it was not supported by the pleading. (3) Where the wife sues for the recovery of real estate as her separate estate which had been conveyed to the husband during marriage, she has the burden of alleging and proving with reasonable certainty that her separate funds alone were used in the purchase, and, not having sued for an accounting or sought to charge the community as being indebted to her, cannot recover title to such property even should the evidence show that some portion of her money or property short of the whole purchase price was used." In her original petition plaintiff alleged that defendant wrongfully and without her knowledge procured a deed in his own name to property belonging to her, which is situated at 306 North Flores street, having a frontage of 50 feet on said street, and running back to the ditch for depth, it being the property on which she resides, which lot was purchased with the proceeds of the sale of her separate estate and is entirely her separate property. In her trial amendment she alleged that defendant wrongfully and without her knowledge secured a deed to said property in his own name.

We think it reasonably apparent from these allegations that the property in question was purchased with money of the separate estate of plaintiff, and that the defendant wrongfully had the deed therefor made to him instead of to her. It was not incumbent upon the plaintiff to plead the evidence of the facts which constituted the funds with which the property was purchased her separate estate; but she was entitled under the allegations to prove by any competent evidence the fact that the property was purchased and paid for with her own money. Such proof would make the land her separate property, and the defendant would simply hold the bare legal title under the deed in trust for her. The rule is that property purchased during the marriage is presumed to be community, and the burden is upon the party claiming to the contrary to allege and prove such facts as will establish that it is his or her separate estate. This is complied with by the wife when she avers and shows that it was purchased with money of her separate estate. The husband has the control and management of the community property as well as that of his wife's separate estate. Therefore, when he purchases property during the marriage, he knows whether it is paid for with separate or community funds, or with a part of the community and a part of the separate estate of either himself or wife, or of both. For this reason, when he claims that it was purchased with his separate property and claims it as such, he must be more specific in his allegations and proof than the wife is required to be when she asserts such claim, for, from his relations to the estates and property purchased, he is necessarily prepared to meet and repel any false claim made by her; while she may not, by reason of a lack of knowledge of how he has managed the estate and of the facts regarding the particular transaction, be prepared to meet his claim, unless the facts upon which it is based are specifically pleaded. Moor v. Moor, 24 Tex. Civ. App. 150, 57 S. W. 996. In the case under consideration we think it reasonably appears from the evidence that the property in controversy was purchased and paid for with the separate funds alone of plain...