Hand v. Errington

• Citation: 233 S.W. 567
• Decision Date: 02 April 1921
• Docket Number: (No. 9555.)
• Parties: HAND et al. v. ERRINGTON et al.
• Court: Texas Court of Appeals

233 S.W. 567

HAND et al. v. ERRINGTON et al.

(No. 9555.)

Court of Civil Appeals of Texas. Fort Worth.

April 2, 1921.

Rehearing Denied May 14, 1921.

Appeal from District Court, Stephens County; J. R. Warren, Judge.

Suit by May Hand Errington and husband against J. J. Hand and others. Judgment for plaintiffs, and defendants appeal. Affirmed.

W. J. Oxford, John Hancock, and W. B. Powell, all of Fort Worth, for appellants.

Miller & Miller, of Ft. Worth, and Frank H. Booth, of San Antonio, for appellees.

CONNER, C. J.

The appellee May Hand Errington, joined by her husband, instituted this suit against her father, J. J. Hand, his present wife, Emma Hand, the Texas Pacific Coal & Oil Company, the Prairie Oil & Gas Company, and William Bell, for the recovery of an undivided one-half interest in eight separate tracts of land described in her petition. She alleged that she was the sole heir of her mother, Texana Hand, a former wife of J. J. Hand, and that the lands described either belonged to the community estate of her father and mother or had been purchased by her father with the proceeds of said community estate. She prayed for a recovery of an undivided one-half interest in the lands, or in the alternative, for a judgment against J. J. Hand in such sum as would compensate her for one-half of said property should it be found that Hand had so disposed of the same as to prevent a recovery.

The defendant Hand and wife answered by a plea of general denial and not guilty, and specially alleged that the lands described in plaintiff's petition belonged to the separate estate of J. J. Hand, and further pleaded the statute of limitation and settlement with the appellee, as a result of which she had duly parted with whatever interest she may have ever had in the community estate of her mother.

Plaintiff dismissed her suit as against the Prairie Oil & Gas Company and William Bell, and the Texas Pacific Coal & Oil Company answered to the effect that it had secured mineral leases from J. J. Hand and wife upon certain of the lands without notice of the plaintiff's equity, if any, and also pleaded the statute of limitation.

The case was submitted to a jury upon special issues, upon which a judgment was rendered in favor of appellee against J. J. Hand for the sum of $23,036.36, and in favor of the Texas Pacific Coal & Oil Company.

The judgment is based on findings of the jury to the effect that appellee had an undivided one twenty-second interest in three of the eight surveys of land in which she alleged she had an undivided one-half interest, and upon further findings that the value of such one twenty-second interest, which had been sold to an innocent purchaser without notice of appellee's equity, was in the amount of the judgment.

Appellant, by his assignments of error, assails appellee's right to recover anything, as will hereinafter be made to appear. But he makes no attack upon the findings of the jury fixing the extent of her right, nor of the method adopted of compensating her therefor, which seems to be in accord with the rule announced in Boothe v. Fiest, 80 Tex. 141, 15 S. W. 799; Silliman v. Gano, 90 Tex. 637, 39 S. W. 559, 40 S. W. 391. We therefore address ourselves to the inquiry of whether appellee had any right in the lands described in her petition.

Appellant denied and defended on the grounds: First, that all of the lands were at all times owned and possessed by him in his own separate right; and, second, that if appellee ever had an interest it had been already conveyed to appellant by a deed from appellee, joined by her husband, on the_____ day of June, 1903; and, third, that her right had long since been barred by limitation. The contention that appellee at no time had an interest in any of the land in controversy is based upon evidence and findings to the effect that at the death of appellee's mother the community estate of the deceased and J. J. Hand consisted only of about 20 calves, dropped in the year 1885; that said community cattle were retained and commingled with about 250 stock cattle held and owned by J. J. Hand in his own right and prior to the date of his marriage with appellee's mother, which was on May 25, 1884; that the deceased died intestate, and there had been no community or other administration of her estate; that appellant, after his said wife's death, continued to manage, control, and dispose of the cattle as his own, without distinction between the separate and community rights mentioned; and that the lands in which the jury found that appellee had an interest had been purchased out of the proceeds arising from sales of the cattle.

Appellant's insistence is that, inasmuch as there was no administration and no community debts shown to exist, the legal title to the community interest of appellee's mother passed to appellee at the time of the death of her mother; that in reference thereto no trust relation existed between appellant and appellee; and that hence, when appellant sold the community cattle as he did, appellee's title and right did not pass, and her remedy was against the purchaser, to recover the property, or, if sold to an innocent purchaser for value, to recover of J. J. Hand the value of the interest so sold, but that she had no interest or right to the proceeds of such sales, which, it is insisted, became the personal property of the appellant and gave to him the same character of right in the lands purchased therewith.

Appellant cites numerous authorities in support of the foregoing contentions, including article 2469, Rev. Statutes; Dickerson v. Abnenathy, 1 Posey, Unrep. Cas. 107; Miller v. Miller, 34 Tex. Civ. App. 367, 78 S. W. 1085; Wingo v. Rudder, 103 Tex. 150, 124 S. W. 899; Griffin v. McKinney, 25 Tex. Civ. App. 432, 62 S. W. 78; Williford v. Simpson, 217 S. W. 191; Booth v. Clark, 34 Tex. Civ. App. 315, 78 S. W. 398; Arnold v. Ellis, 20 Tex. Civ. App. 262, 48 S. W. 883; Smalley v. Paine, 62 Tex. Civ. App. 52, 130 S. W. 743.

While the above authorities have been pressed upon us by able counsel and may seem to support appellant's contentions, we think they are distinguishable, in that in those cases it affirmatively appeared that there were neither community debts nor administration; and we have concluded that inasmuch as J. J. Hand assumed the authority to sell the community property after the death of his wife, which occurred on the 15th day of February, 1886, the power to do so and to pass full title should be implied. Thirty years or more had passed since the death of appellee's mother and notwithstanding the fact that the evidence fails to so show directly, we should, after such lapse of time, presume the existence of community debts, which under a long line of our decisions confers power upon the surviving husband to dispose of the community estate and pass good title thereto. Harrison v. McMurray, 71 Tex. 128, 8 S. W. 612; Williams v. Conger, 49 Tex. 582; Johnson v. Timmons, 50 Tex. 521; Johnson v. Harrison, 48 Tex. 257; Moody v. Butler, 63 Tex. 210; Simpson v. Brotherton, 62 Tex. 170. This presumption is strengthened by the fact appearing in the record that appellant testified on the trial and failed to deny the existence of community debts, although he of all persons most probably knew whether or not the fact existed. Such failure justifies an inference that there were community debts and that he therefore had the power to sell as he did. Mitchell v. Napier, 22 Tex. 120. If so, his sale passed the title of his minor child, and the proceeds of such sale became impressed with a constructive trust which followed such proceeds into the lands in which they were invested. Oaks v. West, 64 S. W. 1033; Pearce v. Dyess, 45 Tex. Civ. App. 406, 101 S. W. 549, writ refused; Hutchins v. Wilson, 141 Tenn. 297, 210 S. W. 155.

In Oaks v. West, is was said, quoting from the headnotes:

"Where, on the death of a wife, her husband sells the community property and uses more than one-half of the proceeds to pay his individual debt, the balance belongs to her heirs, and property purchased therewith is held in trust for them."

In Pearce v. Dyess, supra, the children of Mrs. Pearce, by a deceased husband, sued her and her second husband for an undivided one-half interest in three separate tracts of land. The suit was based upon the ground that these lands had been purchased by the second husband, taking the deeds in his own name with the proceeds of the community property belonging to the first marriage. It was alleged that such investment created a resulting trust in the land in favor of the plaintiffs, the children of the first marriage. This view was adopted by the court, and the judgment in favor of the plaintiffs was accordingly affirmed. The court cited a number of authorities to the effect that where property is purchased and the conveyance of the legal title is taken in the name of one person, while the purchase price was paid by another person, a trust at once results in favor of the person who paid the price, or whose funds were used in payment thereof. We think it must be held, therefore that, under the undisputed facts and unassailed findings of the jury, to the extent of the one twenty-second interest appellant held the legal title to the three surveys specified in the verdict of the jury in trust for appellee.

A further obstacle to appellee's recovery, however, is presented under appellant's pleas of settlement and of limitation. The facts relating to these subjects are, briefly presented, that the mother of appellee, as before stated, died on the 15th day of February, 1886, when appellee was a little over four weeks old. Appellant placed appellee with a relative, with whom she lived until her marriage, on June 21, 1903. During these intervening years the relations between appellant and appellee, as indeed throughout the trial, appear to have been cordial; appellee frequently visited the home of her father, but there was never any...