Freeman v. Pierce

• Citation: 250 S.W. 778
• Decision Date: 22 December 1922
• Docket Number: (No. 8923.)
• Parties: FREEMAN et al. v. PIERCE et al.
• Court: Court of Appeals of Texas

250 S.W. 778

FREEMAN et al. v. PIERCE et al.

(No. 8923.)

Court of Civil Appeals of Texas. Dallas.

December 22, 1922.

Rehearing Denied March 17, 1923.

Appeal from District Court, Limestone County; A. M. Blackman, Judge.

Suit by Ernest Pierce and others against W. D. Freeman and others, Ben F. Cone and another intervening. From an order appointing a receiver, defendants appeal. Affirmed.

White & White and Stubbs & Walters, all of Mexia, Richard Mays, of Corsicana, Andrews, Streetman, Logue & Mobley, of Houston, and Frank F. Graves, of Houston, for appellants.

W. T. Jackson, C. S. Bradley, and J. E. Bradley, all of Groesbeck, A. B. Rennolds and O. M. Wroe, both of Mexia, and K. C. Barkley, of Houston, for appellees.

SERGEANT, C. J.

On February 4, 1882, Gus Pierce and Mary Carey were married in Limestone county, Tex. A few months later a separation took place which became permanent, the parties never seeing or speaking to each other thereafter. On November 7, 1882, their child, Ernest Pierce, was born. On June 11, 1883, J. M. Berry deeded to Gus Pierce the 93¾ acres of land in controversy herein, the deed being filed and recorded April 14, 1886. The consideration for the transfer was $350 cash, being money earned by Gus Pierce while working at the carpenter's trade during the existence of the marriage relation but subsequent to the separation. In 1887 Mary Carey Pierce obtained a divorce from Gus Pierce, but there were no property rights set up or in any way involved in the divorce proceeding. Thereafter, in 1889, Mary Carey Pierce died intestate, leaving Ernest Pierce as her sole heir and who became of age on November 7, 1903. From time to time Gus Pierce had borrowed money, giving deeds of trust on the land as security, and on one occasion leased it and apportioned the money received therefrom among his children by other wives, allotting to Ernest Pierce his proportionate part also. On November 22, 1920, Gus Pierce sold the land to W. D. Freeman, H. W. Freeman, and H. C. Freeman, appellants herein, and kept the entire purchase price therefor after paying off the debts against the property. On January 16, 1922, the Freemans leased 30 acres of this land to the Kirby Petroleum Company, also appellants, conveying to them seven-sixteenths of the oil and gas therein. The latter had drilled several large producing oil wells thereon, and is now engaged in drilling a great many more. Shortly thereafter Ernest Pierce and his half brothers and sister brought suit against appellants and others in the district court of Limestone county, Tex., at Groesbeck, in trespass to try title to the land, claiming an undivided one-half interest therein as the heir at law of his mother, Mary Carey Pierce. He also prayed for the appointment of a receiver to take active charge and control of the property involved during the pendency of the suit. Ben F. Cone and A. B. Rennolds intervened, each claiming an interest by purchase from Ernest Pierce. The case has not been tried on its merits, but on hearing of the application for a receiver the court was of the opinion that only Ernest Pierce and the two interveners had probable grounds for recovery, and that the property was in danger of being lost, removed, and materially injured and, accordingly, granted the application and appointed T. Y. Pickett receiver on May 23, 1922.

On May 15, 1922, while the application was being heard and appellees' attorney was actually engaged in presenting the case, one of the Freemans and his attorney, B. J. Stubbs, went to the sanitarium at Carlsbad, Tex., where Ernest Pierce was fatally ill with consumption, and procured from him a deed to the Freemans covering his interest in the property, paying a $10,000 consideration therefor. He appeared in court on a stretcher shortly thereafter and testified that the deed had been given under representations that his lawyer had sold him out, that his brothers and sister had compromised the case for $10 each, and unless he took what was offered him for the land, which they testified was full value therefor, he would get nothing. He tendered the money back and asked for cancellation of the deed. A few days later, and prior to May 27, 1922, he died, and his heirs became parties in his stead. From the order of the court appointing the receiver, appellants appeal to this court.

Under Revised Statutes, art. 2128:

"Receivers may be appointed by any judge of a court of competent jurisdiction in this state, in the following cases [among others]; In any action * * * between partners or others jointly owning or interested in any property or fund, on application of the plaintiff or any party whose right to or interest in the property or fund or the proceeds thereof is probable, and where it is shown that the property or fund is in danger of being lost, removed or materially injured."

If the heirs and assigns of appellee Ernest Pierce have a probable interest in the subject-matter of this suit, and if such property is in danger of being lost, removed, or materially injured, their right to a receiver for its preservation pendente lite is unquestioned. But, if these two conditions do not exist, the receivership should be vacated.

To reach a proper conclusion, it will be necessary to consider the legal effect of the status of the parties involved at the various stages in the history of the case just outlined. The property was originally purchased by Gus Pierce from J. M. Berry, after the former's marriage to Mary Carey, after the birth of Ernest Pierce, and prior to the granting of the divorce. Under Revised Statutes, art. 4622:

"All property acquired by either the husband or wife during marriage, except that which is the separate property of either one or the other, shall be deemed the common property of the husband and wife. * * *"

As the funds which purchased the land were earned during such coverture by the husband working at his carpenter's trade, the real estate in which they were invested became community. That this is the correct status of the property is also declared by Judge Ocie Speer in section 514 of his "Law of Marital Relations," which reads:

"The community estate is a statutory estate, dependent wholly upon the existence of the marriage of which it is an incident. It is peculiarly a child of the marital union. It begins at the altar and ends at the grave, unless sooner terminated by judicial decree. It continues during the marriage, regardless of the living apart of the spouses, and regardless of the proportionate contributions of the respective partners. All the earnings or acquisitions of either, not separate under the statute, become a part of the community fund. Like the status of the parties, the community estate as such is terminated only upon dissolution of the marriage by death or divorce." Goode v. Jasper, 71 Tex. 48, 9 S. W. 132.

When the marriage relation was dissolved by the divorce of Mary Carey Pierce from Gus Pierce, the property was not disposed of or even involved. Therefore, under the law, it passed from the status of community property into a joint estate of Gus Pierce and Mary Carey Pierce as tenants thereof in common. The wife's equitable title to a one-half interest was not affected by the husband placing the legal title to the entire interest in his own name. The same section of Speer's "Law of Marital Relations" defines the status of the property on such date in the following language:

"After dissolution of the marriage there can be no further community between the parties. If the parties are divorced they become tenants in common in the former community, in the absence of a judicial partition, and are clothed with absolute control and disposition of their separate property. The wife thereafter deals with such property as one of the owners, not as agent or representative of the community or of the husband."

To the same effect are the holdings in Williamson et ux. v. Gore et al. (Tex. Civ. App.) 73 S. W. 563; Goode v. Jasper, supra; Wingo v. Rudder, 103 Tex. 150, 124 S. W. 899.

The one-half interest of Mary Carey Pierce in this property, originally community, afterwards separate in cotenancy, passed by inheritance on her death intestate to her son and only heir. Ernest Pierce. Revised Statutes, art. 2461.

From that time on until the land was sold on November 22, 1920, by Gus Pierce to the Freemans, Ernest Pierce and his father were tenants in common, each of an undivided one-half interest in the land, unless the statutes of limitation bar the rights of Ernest Pierce. The relation of trustee and beneficiary between Gus Pierce and Mary Carey Pierce, which came into existence when the land was originally purchased, continued after the granting of the divorce, and, on the death of Mary Carey Pierce, continued to exist between Gus Pierce and Ernest Pierce as the sole heir at law of his mother. Limitation begins to run in favor of one cotenant against another, when a trust relation exists only from the time when the former openly asserts adverse and sole claim to the property and brings knowledge thereof home to his cotenant. Consequently, a claim of adverse holding by Gus Pierce, either made in express words or by acts or conduct indicating clearly such intention with notice thereof to his wife or son, will set in motion the statute of limitation from such time. But we have searched the records in vain for any adverse claim prior to the sale to the Freemans on November 22, 1920. The testimony of Gus Pierce discloses that he had at no time spoken to his wife, Mary Carey Pierce, after their separation, which was prior to the birth of Ernest Pierce. He testified that when he leased this land he "divided the money with all my children and I gave Ernest some, I gave him his part. What was due him. I have forgotten what it figured." This was more of a recognition of Ernest Pierce's interest in the land than a disavowal thereof. But at no time did Ernest Pierce and his father...