Heintz v. Heintz

• Court: Texas Court of Appeals
• Writing for the Court: Bookhout
• Citation: Heintz v. Heintz, 120 S.W. 941, 56 Tex. Civ. App. 403 (Tex. App. 1909)
• Decision Date: 12 June 1909
• Parties: HEINTZ v. HEINTZ.

120 S.W. 941

HEINTZ v. HEINTZ.

Court of Civil Appeals of Texas.

June 12, 1909.

Appeal from District Court, Dallas County; E. B. Muse, Judge.

Suit by Mathilda Heintz against F. A. Heintz. From a judgment for defendant, plaintiff appeals. Affirmed in part, and reversed in part.

This suit was instituted by Mathilda Heintz against her husband, F. A. Heintz, for divorce and the custody of their minor children, also to have a resulting trust adjudged in her favor in land held by him, paid for out of her separate funds, and for judgment for moneys belonging to her separate estate alleged to have been wrongfully converted by him. The defendant answered by a general denial and specially pleaded the facts why a divorce should not be granted. A trial resulted in a verdict for defendant and judgment followed on the verdict. Appellant's motion for new trial being overruled, she perfected an appeal.

N. G. Turney, T. F. Lewis, and J. H. Peebles, for appellant. Chas. F. Clint, for appellee.

BOOKHOUT, J.

Appellant does not in this court complain of the verdict and judgment denying her a divorce, but does complain of the court's failure to submit to the jury the issues relating to the separate property as raised by the pleadings.

The petition sought a recovery (1) for divorce and the custody of the minor children; (2) for judgment for moneys belonging to the separate estate of the plaintiff and wrongfully and negligently converted by defendant, and to have a resulting trust declared in her favor in land held by him in his own name for moneys belonging to her separate estate used by him in the payment of said land. We think it clear that, independent of her suit for divorce and the custody of her minor children, appellant can maintain a suit against her husband for the recovery of moneys belonging to her separate estate wrongfully converted by him; also to have a resulting trust declared in her favor in land held by him in his own name, paid for in whole or in part out of her separate funds. O'Brien v. Hilburn, 9 Tex. 298; Price v. Cole, 35 Tex. 471; Hall v. Hall, 52 Tex. 298, 36 Am. Rep. 725; Ryan v. Ryan, 61 Tex. 474. Besides, there is evidence in the record that there has been a permanent separation of the appellant and appellee; that, while at the time of the trial they lived in the same house, they occupied separate rooms; and that neither contributed to the other's welfare. In such case she could maintain the suit against him for her separate property, and the court would be authorized to grant her power to manage and control the same. Dority v. Dority, 96 Tex. 215, 71 S. W. 950, 60 L. R. A. 941. There is evidence that, after her marriage to appellee, she received from Germany, her former home, certain moneys, her separate estate, which were used by him in improving a tract of land not owned by him, and which was lost in a suit against him, and that she inherited other moneys, part of which were used by her husband in paying in part at least for the Fletcher and Grimmitt tracts of land now held by him. Appellee denied that any of appellant's separate funds were used in the payment of this property. These issues were not submitted to the jury. The court submitted 56 special...