Griggs v. Reed

• Decision Date: 03 November 1950
• Docket Number: No. 2831,2831
• Citation: 233 S.W.2d 907
• Parties: GRIGGS et al. v. REED et al.
• Court: Texas Court of Appeals

Page 907

233 S.W.2d 907

GRIGGS et al. v. REED et al.

No. 2831.

Court of Civil Appeals of Texas, Eastland.

Nov. 3, 1950.

Alton C. Linne, Monahans, for appellants.

Coffee, Coffee & Gilliland, Big Spring, for appellees.

COLLINGS, Justice.

This is a suit for partition of a 160 acre tract of land situated in Howard County, Texas. Plaintiffs, Mrs. Jules Reed Griggs, Mrs. Dinnie Reed Ravenscraft, William Franklin Reed, Arlis E. Reed, Elmira Reed Teeter, J. B. Reed (also known as J. B. Brown) and Inez Cone Thorp brought this action against defendants, Laura Burnett Reed, Jack Reed and A. W. Reed. Plaintiffs alleged that defendants were in actual possession of the land and premises and had been since on or about December 24, 1927 but that plaintiffs and defendants were joint owners in fee simple of said land and together were the sole owners thereof and specifically alleged the interest of each party plaintiff and defendant therein. Plaintiffs prayed that real estate be partitioned among such joint owners as provided by law. Defendants filed a general denial. It was agreed by the parties that the land could not be divided and partitioned in kind and that it should be sold by a receiver appointed by the court and the proceeds from such sale divided among the owners in proportion as their interest might be determined by the court. Upon a trial of the cause, the court found that the land was acquired by W. T. Reed during his marriage relationship with defendant Laura Burnett Reed and that such land thereby became the community property of W. T. Reed and Laura Burnett Reed; that W. T. Reed died intestate in 1927 and at the time of his death left surviving the defendant, Laura Burnett Reed and four children, Jules Reed Griggs, Dinnie Reed Ravenscraft, Jack Reed and A. W. Reed, being his only surviving children, and William Franklin Reed, Arlis E. Reed, Elmira Reed Teeter and J. B. Reed (also known as J. B. Brown) who were the only surviving children of E. M. Reed, deceased, who was a son of W. T. Reed.

The evidence shows that Jack Reed and A. W. Reed are children of the marriage of W. T. Reed and his surviving wife, Laura Burnett Reed. Jules Reed Griggs and Dinnie Reed Ravenscraft are children of W. T. Reed by his former marriage to Elmira Reed, as was E. M. Reed, deceased. Inez Cone Thorp is the surviving widow of J. B. Reed, deceased, who was also a child of the first marriage of W. T. Reed.

The court found that Laura Burnett Reed was vested with an undivided one-half interest in and to said land, that each of the surviving children of both the first and second marriage of W. T. Reed were vested with an undivided 1/10 interest in said land and that the children of W. E. Reed, deceased, were each entitled to an undivided 1/40 interest in and to said land, and that no other party to the suit owned any interest in said land. The court ordered the land sold in accordance with the agreement of the parties, and that the proceeds from such sale be paid to the respective parties in proportion to the extent of the interest owned by them. From such judgment, plaintiffs have brought this appeal.

Appellants contend that the court erred in holding the property in question to be community property of W. T. Reed and his second wife, Laura Burnett Reed, because the evidence conclusively shows that W. T. Reed acquired same shortly after his marriage to Laura Burnett Reed and paid therefor with funds belonging jointly to him and to appellants. It is the contention of appellants that the money used by W. T. Reed to purchase the Howard County property was acquired by him by the sale of a tract of land located in Eastland County, Texas, which was the community property of W. T. Reed and his first wife, Elmira Reed.

The evidence shows that the Howard County property was acquired by W. T. Reed during his marriage to his second wife, Laura Burnett Reed. It is the well settled law in Texas that property purchased during the marriage relationship is presumed to be community property and the burden of proving the contrary rests upon the party asserting that fact. Wilson v. Wilson, Tex.Civ.App., 200 S.W.2d 258; Lindemood, et al. v. Evans, Tex.Civ.App., 166 S.W.2d 774 (Writ Ref.); Gibson v. Gibson, Tex.civ.App., 202 S.W.2d 288; Davis v. Duncan, Tex.Civ.App., 102 S.W.2d 287; Epperson v. Jones, 65 Tex. 425; Hardee v. Vincent, 136 Tex. 99, 147 S.W.2d 1072. The finding of the court that such property was the community property of W. T. Reed and his second wife, Laura Burnett Reed, is, therefore, correct unless as contended by appellants, the evidence conclusively shows that the money used to purchase same came out of the funds owned jointly by appellants and W. T. Reed.

According to appellants' contention, the evidence shows that their father and grandfather, W. T. Reed, during the lifetime of his first wife, Elmira Reed, owned land in Eastland County, Texas, and that subsequent to his first wife's death, sold such land and shortly thereafter, in December of 1906, married appellee, Laura Burnett Reed, and about two or three days after such marriage, purchased the Howard County property and paid for it out of money received from the sale of the Eastland County land. We feel that the evidence falls far short of conclusively showing that the proceeds from the sale of the Eastland County land was used to purchase the 160 acre tract of land in Howard County.

Appellant, Mrs. Ravenscraft, did testify that the Howard County land was paid for by W. T. Reed from the proceeds of the sale of the Eastland County pr...