Harkness v. McQueen

• Decision Date: 31 May 1950
• Docket Number: No. 4620,4620
• Parties: HARKNESS v. McQUEEN et al.
• Court: Texas Court of Appeals

Page 629

232 S.W.2d 629

HARKNESS v. McQUEEN et al.

No. 4620.

Court of Civil Appeals of Texas, Beaumont.

May 31, 1950.

Rehearing Denied Sept. 14, 1950.

Stewart, Burgess & Morris, Houston, for appellant.

W. J. Knight, Houston, George B. Darden, Conroe, Kenneth Krahl, Julia Mae Anderson, Houston, for appellees.

COE, Chief Justice.

This action was brought by appellant, Ralph C. Harkness, against appellees, Martelia H. McQueen (former wife of appellant) and her husband, Tolbert F. McQueen, and their grantees, Edgar P. Bean and wife, Blanche M. Bean, in trespass to try title, asking for recovery of title to and possession of an undivided one-half interest in a 5 acre tract of land in Montgomery County, Texas, and in the alternative for recovery from appellee, Martelia Harkness McQueen and husband, Tolbert F. McQueen, a money judgment in the amount of $1,750 as to which appellant seeks to impose a trust on certain land in Freestone County, Texas, alleged to have been purchased with the proceeds from the sale of the Montgomery County property and for the imposition of the trust on the Freestone County property and for the proceeds of other property disposed of by appellee Mrs. McQueen, former wife of appellant, and for partition of said Freestone County property. Appellant also sought to recover from the appellees McQueen interest in certain furniture which he alleged was community property of the appellant and Mrs. McQueen; to recover for his interest in $2,500 fraudulently withheld and concealed by Mrs. McQueen from the sale of a piece of property in Harris County, Texas, referred to in the record as a brick residence; and further to recover for his interest in the proceeds of property sold by the appellee Mrs. McQueen, which was located in Harris County, and referred to in the record as a frame residence, alleging that the appellee Mrs. McQueen had defrauded him of his community interest therein, and for an accounting between appellant and appellee Mrs. McQueen as to their community property and for partition.

The case was tried to a jury and upon the close of all the evidence the court, pursuant to appellees' motion, instructed a verdict for appellees and rendered judgment for appellees. From such judgment this appeal was properly perfected. The appellees, Martelia Harkness McQueen and husband, Tolbert F. McQueen, answered by general denial and plea of not guilty as did the appellees, Edgar P. Bean and wife, Blanche M. Bean.

By appellant's Points numbered from 1 to 22 he complained of the action of the trial court in granting the motion of appellees' for instructed verdict because there was sufficient evidence to support a jury finding that the several tracts of land described in his petition constituted community property of appellant and Mrs. McQueen, and the only evidence to the contrary was the uncorroborated and contradicted testimony of Mrs. McQueen, an interested party, and therefore it was error to enter a judgment against the appellant and in favor of appellees. Similar points are made relative to each count contained in the appellant's petition. Inasmuch as the evidence is necessarily different as it affects the different counts of appellant's petition, we will consider each count separately. We will first consider the action of the trial court in instructing a verdict and in entering judgment against the appellant as to his action in trespass to try title to 5 acres of land, same being the West 1/2 of Lot No. 43 of the Shadydale Subdivision in the Wm. Willis Survey in Montgomery County, Texas.

It was shown upon the trial of this case that appellant Harkness and the appellee Mrs. McQueen were married in the city of Baltimore some time during the year of 1919, and were divorced by judgment of one of the district courts of Harris County, Texas in 1945, which judgment made no disposition of the community estate, if any, of the parties. On the contrary it recited that the parties owned no community estate. The deed to this 5 acres of land was executed on March 21, 1936, by one James A. Musick, reciting a consideration of $500, $75 of which was paid in cash and the balance was represented by a vendor's lien note of $425, payable in monthly installments of $25 and conveyed said 5 acres of land to Mrs. R. C. Harkness (now Mrs. McQueen). The divorce decree above referred to was entered on the petition of the appellee Mrs. McQueen, then Mrs. Harkness, service on the appellant being by publication. In her petition she alleged that she and the appellant were married on or about the 19th day of March, 1919, and lived together as husband and wife until during the month of January, 1938, at which time the defendant left and abandoned her without just cause or provocation, and that such abandonment continued for a period of more than 7 years. Further, that there was no community property accumulated during said marriage, either real estate or personal property. To this petition was attached a proper affidavit and request for the issuance of citation for service by publication.

The appellant testified by deposition in which he states that he had been crippled since August, 1944, and can hardly use his legs at all on account of arthritis and cannot walk except with difficulty and on crutches, and is unable to travel and that is the reason he was unable to attend court in this case. At the time the deposition was taken he resided in Tampa, Florida; that before he was crippled he was superintendent and chief engineer for the Atlantic, Gulf and Pacific Dredging Company, 15 Park Row Building, New York; that he married the appellee Mrs. McQueen in Baltimore, Maryland in 1919; that she owned no money or property at the time they were married; that she never told him she owned any money or property; that she did not acquire any money or property after their marriage except $250, being her share in her deceased father's estate; that his employment in the dredging work carried him from place to place, including Norfolk, Virginia, Newark, New Jersey, New York, Boston, Fall River, Massachusetts, Houston, Brownsville and Corpus Christi, Texas, Tampa, Florida and various other places; that the general office and headquarters for the dredging company was in New York City; that he left Texas in 1929; that he had always lived in the same place with his wife until he left Texas, and had no idea how much money he had given her up to that time; that after leaving Texas he continued to sent his wife money regularly until the year of 1942; that he has checks and money orders showing that he had sent her, during that time, the sum of $8,865, besides that he gave her cash money and had sent her money by telegraph which he had no receipt for but could not say how much it amounted to and would not undertake to approximate it; that he first learned that Mrs. Martelia Harkness had filed suit for divorce against him in May, 1946; that he and his wife never made any kind of an agreement concerning a division of their property; that he received nothing from the sale of the property in Montgomery County, being the West 1/2 of Lot 43 of the Shadydale Subdivision, of the Wm. Willis Survey, and that he first learned that Mrs. Harkness had sold the property to Edgar P. Bean and wife in May, 1946, and that he did not authorize Mrs. Harkness (now Mrs. McQueen) to sell that property to Edgar P. Bean or any one else; that in addition to the money he had sent to his wife that she received all the money received as rents from other property owned by them which will be referred to later on. The substance of Mrs. McQueen's testimony is to the effect that the consideration for the 5 acres of land in Montgomery County, Texas, was paid from her separate property, that is, from funds which she had won gambling in Hot Springs, Arkansas during 1907 and 1908, and said that she kept these funds in cash in three places, to wit, between some boards, in a robe and in the hem of a skirt; that her husband knew nothing of her having this money which in all amounted to several thousand dollars. She kept $2,000 of this money nailed up between boards which she kept under the ice box and other places; that she had some $1,800 in a robe and $800 or $900 in a skirt; that she was sure she paid no part of the purchase price of the land from money sent her by her husband and that it was all paid out of money from the skirt, boards and robe. This, if true, would establish her separate ownership of this property.

Upon the trial of this case the appellee, Mrs. McQueen, testified that the appellant abandoned her in 1929 and not in 1938 as alleged in her petition for divorce and left her to manage as best she could, stating, in effect, that he never intended to return and that he gave his consent for her to buy the Montgomery County property, but stated that he would assume no responsibility in connection therewith. Other portions of her testimony will be set out in connection with the discussion of the other points.

Appellant calls our attention to many inconsistencies and contradictory statements in the testimony of the appellee Mrs. McQueen, which they contend were such as to discredit her as a witness and were such as to justify a jury in rejecting her testimony and was, therefore, insufficient to overcome, as a matter of law, the prima facie case made out by appellant. These statements are that she testified that at the time she filed her divorce petition against appellant that he resided in Long Island, N. Y., and that he was working for the Atlantic, Gulf and Pacific Dredging Company at that time, and that she had corresponded with him. Yet she admitted that prior to the time she filed her divorce petition that she signed an affidavit that her husband (appellant) was dead. This affidavit was made so as to enable her to sell, without the joinder of her husband, what is referred to as a frame dwelling in Harris County, Texas; that in October, 1945, when she filed...