Finley v. Pafford, 4710.

• Decision Date: 15 February 1937
• Docket Number: No. 4710.,4710.
• Parties: FINLEY et al. v. PAFFORD et al.
• Court: Texas Court of Appeals

104 S.W.2d 163

FINLEY et al. v. PAFFORD et al.

No. 4710.

Court of Civil Appeals of Texas. Amarillo.

February 15, 1937.

Rehearing Denied April 5, 1937.

Error from District Court, Armstrong County; E. C. Nelson, Jr., Judge.

Suit by Mrs. Lokie Finley and others against J. L. Pafford, executor of the estate of Mrs. Louise Calliham, deceased, and others. To review a judgment for defendants, plaintiffs bring error.

Affirmed.

Northcutt & Jordan, of Amarillo, for plaintiffs in error.

Otis Trulove, of Amarillo, and J. S. Stallings, of Claude, for defendants in error J. L. Pafford, First Nat. Bank, and Claude National Farm Loan Ass'n.

Lewis Rogers and Chas. L. Terry, both of Houston, for defendant in error Federal Land Bank.

MARTIN, Justice.

The parties will carry here their trial court designation.

S. W. Calliham and Louise Calliham were husband and wife. Both died, the husband first, and intestate. No children were born of their marriage. Mrs. Louise Calliham left a will, naming the defendants herein as the devisees of the property in controversy. Plaintiffs are the heirs of S. W. Calliham, deceased, being the sisters and the children of deceased brothers and sisters of S. W. Calliham, deceased. They filed this suit for an undivided one-half interest in two sections of land in Armstrong county, naming the above parties and the Federal Land Bank of Houston and another as defendants.

The plaintiffs allege and claim that the property in controversy was the separate estate of S. W. Calliham, deceased; the defendants, that same was the community property of S. W. Calliham and his wife, the title to which vested in the wife upon the death of the husband, intestate. Much of the testimony offered by plaintiffs was ruled inadmissible as in violation of article 3716, known to the legal profession as the "dead man statute." The trial court peremptorily instructed the jury to find for defendants. His action in so doing and his rulings upon the said evidence are the only legal issues here worthy of mention.

The background of this controversy is:

S. W. Calliham and Louise Calliham were married in 1896. In 1899, S. W. Calliham was awarded school section 128, as an actual settler at $1 per acre. This presumably was under a right theretofore acquired from one Sadler in 1898. On December 10, 1901, Louis Garver and wife conveyed section 129 to said S. W. Calliham, the deed reciting the payment of $433.34 cash and notes aggregating $1,566.66 as a consideration therefor. These two sections are those in controversy here. On September 7, 1898, A. H. Sadler and wife executed a bill of sale to all improvements on section 128 for a recited consideration of $1,050 cash, paid by S. W. Calliham, deceased. It is the claim of plaintiffs that section 128 was purchased by S. W. Calliham with funds inherited from his mother's estate, and that section 129 was purchased by Andy Calliham, the father of S. W. Calliham, and given to him in 1901. The mother of S. W. Calliham died at the then parental home of the Callihams in Collin county, May 28, 1897. Thereafter, and prior to the purchase of the land in controversy, S. W. Calliham received from his mother's estate about $1,200, one-half cash and one-half notes.

Some of the propositions advanced by plaintiffs are not properly supported by statements. The trial court erroneously excluded some of the evidence offered. However, considering all propositions advanced, and all admissible evidence excluded, there is still, in our opinion, not sufficient evidence to go to the jury on the issue of whether or not S. W. Calliham's separate estate went into the purchase of this land. We have detailed above all essential facts proven and offered to be proven by admissible evidence. This goes no further than to show the possession of separate funds by S. W. Calliham prior to the purchase of the land in controversy. This alone in cases of this character has many times been held insufficient. We quote:

"It has been declared that mutations of separate property must be clearly traced, or clearly and indisputably traced, or that the evidence must be clear and satisfactory, and that the fact that property acquired during marriage represents a mere mutation of separate property will not be inferred except from circumstances of a conclusive tendency. * * *

"Such consideration must move immediately and contractually from the separate estate into the new acquisition, and generally the mutation must be specifically traced, proof of possession of separate means not alone being sufficient." 31 C.J. p. 57.

"Where separate and community property are confused or blended so that the separate property cannot be identified, the presumption in favor of the community casts the whole into the community. * * *

"In any event the loss of the separate property results from the presumption in favor of the community in the absence of identification of the separate property, and not from the mere fact of intermixture." 31 C.J. p. 56.

Many Texas cases are cited in support of the above.

Again:

"The evidence in support of this claim was the testimony of Wright as to the amount of his means at the date of his marriage in 1860, estimated by him at over $100,000; that his wife, so far as he knew, had nothing, save an interest in an estate in New Jersey; and that during his marriage he did not accumulate property, but, on the contrary, lost largely. He says that the means and money used in the purchase of the lots were acquired before Mrs. Wright became his wife; but, from his whole testimony, it is evident that this is an inference from his alleged failure during his marriage to add to his property, rather than a statement of his ability to trace the particular means used in the purchase. Outside of his own testimony, there is none other on the point save that of C. T. Wright, that his uncle (Reuben Wright) had large means when he married Mrs. Wright, and, so far as witness knew, she had nothing; and on cross-examination he said that it was his impression that Reuben Wright paid for the lots with his separate means, but that he did not know of his own knowledge. Some of the lots were purchased in 1863, and others in 1868, eight years after the marriage.

"Our opinion is, that the court did not err in holding that this evidence was too indefinite to rebut the presumption established by the statute, that property acquired during marriage is community property, and in refusing to submit that question to the jury. The proof should have been `clear and conclusive.' (Love v. Robertson, 7 Tex. [6], 11 .) It was not a case where specific property, proven to have been separate estate, was exchanged; but a case in which it was necessary to trace the means through mutations and changes, and this should have been done `clearly and indisputably.' (Chapman v. Allen, 15 Tex. [278], 283) The means invested should have been traced back to the separate estate, not through indefinite channels and unknown changes, but connectedly and plainly." Schmeltz v. Garey, 49 Tex. 49, at pages 60-61.

"Mere mutations of form do not of themselves work a transmutation of the character of property, as being community or separate, after once it has been cast either into the community, or to the separate estate of the husband or the wife; and the same is true of the commingling of the separate and community property, the separate property remaining separate as long as it can be identified. It is where, by such processes, the identity of separate property is lost that, by the operation of the presumption in favor of the community, a transmutation takes place." 31 C.J. p. 72.

"The principle of law is established beyond question that real estate acquired by purchase during the existence of the married relation, no matter whether the deed be taken in the name of the husband or wife or both, creates the presumption that such property is common property. While this presumption is not conclusive, the burden of proof rests upon the party affirming the fact to be to the contrary, and such fact must be established by clear and convincing evidence. Ramsdell v. Fuller, 28 Cal. [37], 42 ; Morgan v. Lones, 78 Cal. [58], 62, 20 P. 248. In order that property may maintain its status as separate property, it is not necessary that it should be preserved in specie or in kind; yet, when it has undergone mutations and assumed other conditions, it is absolutely necessary, in order to maintain its character as separate property, that it be clearly traced and located. Chapman v. Allen, 15 Tex. [278], 283; Rose v. Houston, 11 Tex. [324], 326 ; Schmeltz v. Garey, 49 Tex. [49], 60. The money expended in the purchase of the realty involved here should have been traced back to the separate estate of Julia A. Dimmick, not by way of surmises and probabilities, but by plain and connected channels." Dimmick v. Dimmick, 95 Cal. 323, 30 P. 547, 548.

Here, the title was taken in the name of the husband after his marriage, and was presumptively community property. It remained so until his death. An insignificant amount was paid as a cash consideration for this land and a much larger amount remained as an indebtedness against it. Was this the commingled funds of the community and Calliham's separate estate? We think, if such funds had been so commingled as that the separate estate had lost its identity, the...