Foster v. Christensen
| Decision Date | 24 January 1934 |
| Docket Number | No. 1452-6125.,1452-6125. |
| Citation | 67 S.W.2d 246 |
| Parties | FOSTER et al. v. CHRISTENSEN. |
| Court | Texas Supreme Court |
Cunningham, Moursund & Johnson, of San Antonio, and H. S. Bonham, W. E. Pope, and H. A. Carr, all of Corpus Christi, for plaintiffs in error.
Sidney P. Chandler, of Corpus Christi, for defendant in error.
On April 15, 1916, W. H. Foster and his wife, Loula, conveyed to George A. Newgent and his wife, Frances F. Newgent, who was the daughter of Mr. and Mrs. Foster, certain land containing 55.6 acres in Kleberg county, Tex.; the deed reciting a cash payment of $600, the execution by the grantees of a note in the sum of $580, to be paid in yearly installments amounting each to one-fourth of the annual crops raised on the land, and the assumption of eight promissory vendor's lien notes, each in the sum of $200 theretofore executed by W. H. Foster to Theodore F. Koch. A vendor's lien was expressly retained to secure all the unpaid purchase money. The deed contained no statement that the land was intended to be the separate property of either of the grantees.
A petition in bankruptcy was filed against George A. Newgent, and he was adjudged a bankrupt on November 1, 1922. In the schedules filed by him he listed among his debts the $580 note and also a balance of $800 and interest due on the eight $200 notes above described, and among his assets he listed the above-described land. The claim of the bankrupt that the land was exempt as homestead was contested by a creditor, and after a hearing before the referee an order was entered December 31, 1923, declaring that the land was not homestead, but was subject to the payment of the claims of the creditors. This order recited that the hearing was had after notice "to the creditors and other interested parties."
On application of the trustee, an order was entered November 17, 1924, directing the trustee to sell said tract of land free of all liens at public auction after publishing notice of the sale. This order does not recite that it was entered after a hearing or pursuant to any notice. On December 9, 1924, an order was entered by the referee reciting that the trustee had reported the sale of said land in accordance with the order of sale to defendant in error Pete Christensen for the sum of $608, approving the report, and directing the trustee to execute a deed to the purchaser conveying the land to him free of liens. On the next day the trustee executed the deed as directed.
On April 17, 1925, W. H. Foster and wife filed suit in the district court of Nueces county, Tex., against George A. Newgent, Frances F. Newgent, Pete Christensen, and A. L. Ray and wife. This suit was for recovery of the principal and interest due upon the $580 note and a renewal of same executed on March 24, 1924, and for foreclosure of the lien. The petition alleged that the defendant Christensen claimed an interest in the land which was inferior and subordinate to the note and lien. It appears that A. L. Ray and wife were, or had been, tenants of the land. The citation served on defendant Christensen on May 2, 1925, directed him to appear and answer at the next term of court to be held on August 3, 1925. An answer was filed for him on August 4, 1925. However, by an act of the Legislature which was approved and became effective on March 16, 1925, the time for the beginning of the terms of the district court of Nueces county was changed so that the next term after the service of the citation upon Christensen began June 8, 1925. On June 9, 1925, Newgent and wife, as defendants in that suit, filed a waiver of service, and on that day judgment was rendered in favor of the plaintiffs reciting the default of the defendant Christensen and of the Rays and foreclosing the lien. At the sheriff's sale the land was bought by W. H. Foster and wife.
The instant suit was filed in the district court of Nueces county on August 25, 1925, by defendant in error Christensen against plaintiffs in error Mrs. Loula Foster, Mrs. L. M. Decker, Frances F. Newgent, and George A. Newgent, and also against A. L. Ray and wife. W. H. Foster died, leaving his wife and his two daughters, Mrs. Newgent and Mrs. Decker, as his only heirs. The suit is to set aside the default judgment, to recover judgment for the title and possession of the land, and to remove from the title the clouds created by the claims of plaintiffs in error; it being alleged that said claims were concluded by the orders of the bankrupt court and the sale made thereunder free from liens.
Plaintiffs in error in their answer resisted the effort to set aside the default judgment and repleaded their claims of interests in the land, alleging that the land was the separate property of Mrs. Newgent by reason of the payment by her out of her separate funds of the cash consideration when the land was conveyed to her and her husband and the agreement of all parties to the transaction that the remaining payments should be made by Mrs. Newgent out of her separate funds. They further alleged the execution of the $580 note, the retention of the lien securing it, the renewal of the debt, default in its payment, and the right of Mrs. Foster, Mrs. Newgent, and Mrs. Decker to foreclose the lien. With reference to the proceedings in bankruptcy, the answer alleged that the bankrupt George A. Newgent owned no interest in the land, that Mrs. Newgent and W. H. Foster and wife were not parties to the bankruptcy proceedings, were served with no notice of any of the proceedings, and were not bound by the same, that prior to his purchase of the land notice was given to defendant in error of Mrs. Newgent's ownership, and that neither the interest of Mrs. Newgent nor the lien owned by Foster and wife was affected by the proceedings and sale in bankruptcy. The answer alleged that following the default judgment in the district court of Nueces county the land was purchased at sheriff's sale by Mr. and Mrs. Foster, and afterwards conveyed by them to Mrs. Decker. The prayer is that defendant in error take nothing by the suit, that Mrs. Decker or Mrs. Newgent be adjudged to be the owner of the land, and that judgment be rendered on the $580 note as renewed and for foreclosure of the lien securing it.
The trial court sustained demurrers to practically all of the answer except that part of the same alleging Mrs. Newgent's separate ownership of the land, the execution of the $580 note, the retention of the lien securing it, and its renewal. All evidence offered by plaintiffs in error for the purpose of proving Mrs. Newgent's separate ownership of the land, notice to defendant in error of such claim, and that plaintiffs in error were not notified of and did not appear in the proceedings in bankruptcy, was excluded, and judgment was rendered for defendant in error following an instructed verdict. The Court of Civil Appeals affirmed the judgment of the trial court, apparently, as shown by its opinion on motion for rehearing, upon the sole ground that the claims asserted by plaintiffs in error were in effect a collateral attack upon the orders of the court of bankruptcy which could not be entertained. 42 S.W.(2d) 460.
A careful consideration of the nature of the wife's separate property and of the rule against collateral attack leads us to a different conclusion.
The land, of course, presumptively became the community property of Mr. and Mrs. Newgent when it was conveyed to them jointly with no recital of her separate ownership; but her ownership of the land as her separate property would have been established by proof of the allegations in the answer that the cash payment was made out of her separate funds and that it was agreed at the time by the parties to the deed that the land should be her separate property and that the balance of the purchase money should be paid out of her separate funds. The effect of such proof would not be altered by the fact that the husband joined in the promise to pay the balance of the purchase money. See McClintic v. Midland Grocery & Dry Goods Co., 106 Tex. 32, 154 S. W. 1157; Presidio Mining Co. v. Bullis, 68 Tex. 581, 4 S. W. 860; Carter v. Bolin (Tex. Civ. App.) 30 S. W. 1084; Speer's Law of Marital Rights (3d Ed.) §§ 428-429.
When the wife's separate funds are used to pay but part of the purchase price of land acquired by the husband and wife during marriage, she has, in the absence of a different intention, an interest or equity in the land in proportion to such payment by her. The wife's separate ownership of property, although standing in the name of her husband or appearing on record to be community property, may be proven as any other fact by any competent evidence, including parol evidence, surrounding circumstances, and declarations of the parties. See the authorities last above cited and Cummins v. Cummins (Tex. Civ. App.) 224 S. W. 903; Speer's Law of Marital Rights (3d Ed.) §§ 406, 428, 429, 437.
Her ownership of separate property is a separate and individual ownership, and not merely a claim or inchoate right. In Read v. Allen, 56 Tex. 182, 193, it is said: "With us, husband and wife, as regards their personal property, unless when otherwise provided by statute, are separate and distinct persons in law." That case holds that a wife not actually a party to a suit is not bound by the judgment rendered in the suit even though her husband is a party, for the reason that the presence of her husband as a party to the suit does not make the wife constructively a party
Judgment of foreclosure and sale in a suit against the husband when the land is the separate property of the wife does not affect her title and...
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