Henry S. Miller Co. v. Evans

• Decision Date: 18 March 1970
• Docket Number: B--1535
• Parties: HENRY S. MILLER COMPANY, Petitioner, v. Lon EVANS, Sheriff of Tarrant County, Texas et al., Respondents. No
• Court: Texas Supreme Court

Page 426

452 S.W.2d 426

HENRY S. MILLER COMPANY, Petitioner, v. Lon EVANS, Sheriff of Tarrant County, Texas et al., Respondents.

No B--1535.

Supreme Court of Texas.

March 18, 1970.

Rehearing Denied April 15, 1970.

Akin, Steinberg & Stanford, Paul H. Stanford and Richard W. Luerssen, Dallas, for petitioner.

Brown, Herman, Scott, Young & Dean, Beale Dean and J. Shelby Sharpe, Fort Worth, for respondents.

McGEE, Justice.

The Henry S. Miller Company brought this action against Lon Evans, Sheriff of Tarrant County, and against the surety on Evans' official bond, to collect money damages under Article 3825, ¹ for Evans' failure to levy execution on Amanda Street property in Fort Worth, Texas. Trial was had before the court without a jury, and judgment was rendered in favor of the Miller Company. The Court of Civil Appeals reversed and remanded the cause to the trial court. 440 S.W.2d 317. We reverse the judgment of the Court of Civil Appeals and render judgment for petitioner for nominal damages in the amount of $1.00, plus costs of court.

The Henry S. Miller Company (hereinafter referred to as Miller) claims that this property is a part of the community estate of Joseph and Nancy Shoaf, while Lon Evans (hereinafter referred to as Sheriff) claims that this property is the separate property of Nancy J. Shoaf, and therefore Miller suffered no damages as a result of his failure to levy execution.

On December 17, 1959, Elsie Nadolski conveyed this Amanda Street property to Nancy J. Shoaf, the wife of Joseph Shoaf.

The deed was recorded on January 14, 1960. It recited a consideration of $1.00 and a vendor's lien note for $8,000.00, paid and to be paid out of Nancy Shoaf's 'sole and separate estate,' and that this property was conveyed to her as her 'sole and separate estate.'

Joseph Shoaf, an experienced real estate dealer and co-signer of this note, handled all of the negotiations involved in the Nadolski transaction. Nancy Shoaf did not participate in any way in these negotiations.

On February 2, 1964, more than four years Subsequent to the execution of the deed to Nancy Shoaf, Joseph Shoaf executed a note payable to Miller in the principal sum of $37,500.00. The sole collateral for Joseph Shoaf's note to Miller, as stated therein, was certain property located in Dallas, Texas. The lien securing payment of this note was subordinate and inferior to two other items of indebtedness; one in the principal sum of $1,150,000.00, and the other in the principal sum of $137,500.00. Upon default in this note on November 16, 1965, Miller obtained a judgment against Joseph Shoaf in the amount of $35,036.00.

On the 4th day of February, 1966, Joseph Shoaf and his wife, Nancy, were divorced. It was recited in the divorce decree, which was introduced into evidence over the Sheriff's objection, that:

'It further appearing to the Court that Plaintiff and Defendant own certain property as Community property, and the parties having announced to the Court in open session that they have voluntarily agreed upon a division and partition of said property, and the Court being of the opinion that such agreed division and partition is just, and right, and equitable, and it is hereby expressly approved by the Court in accordance with its terms.'

By further provision in the decree, the Amanda Street property was awarded to Nancy Shoaf as her separate property. On March 22, 1966, Nancy Shoaf conveyed this property to her mother as a gift.

The parol testimony of Joseph Shoaf, admitted in evidence over the Sheriff's objection, was, in substance, as follows: that he was an experienced real estate dealer; that the 'property was sold to me,' but the title was taken in his wife's name because he was heavily in debt, and 'if something should happen to me, this was something that could provide an income'; that he co-signed the vendor's lien note and paid the $300.00 down payment and some utility bills and taxes; that he collected the rent payments and gave them to his wife, and she deposited them in her separate account out of which she made all of the mortgage payments; that he told the attorney who prepared the deed that 'he wanted title to the property to be put in her name in case anything should happen,' but 'told him I wanted it to be community property'; and that he wanted to fix it so that the creditors could not get the title away in case something happened.

This proceeding is controlled by Article 3825, which provides as follows:

'Should an officer fail or refuse to levy upon or sell any property subject to execution, when the same might have been done, he and his sureties shall be liable to the party entitled to receive the money collected on such execution for the full amount of the debt, interest and costs, to be recovered on motion before the court from which said execution issued, five (5) days previous notice thereof being given to said officer and his sureties.'

We hold Miller's pleadings and proof to be sufficient under Article 3825, to show: (1) that Miller had recovered judgment against Joseph Shoaf; (2) that the execution and order of sale had been issued to the Sheriff; (3) that the execution had been delivered to the Sheriff with the request that he levy upon the Amanda Street property in Fort Worth, Texas; (4) that the Sheriff failed and refused to levy thereon; and (5) that Miller's judgment was unpaid and unsatisfied.

It is the sixth requirement under Article 3825 that gave rise to the basic dispute in this case, viz., that judgment creditor Miller must allege and prove that the property upon which he requested the levy of execution (the Amanda Street property) was community property and, therefore, Subject to execution. Miller did allege that the property was the community property of Nancy and Joseph Shoaf, because it had been acquired during coverture. Had testimony been introduced to that effect and had there been no other evidence to be considered, Miller would have alleged and proved a prima facie case under Article 3825. Smothers v. Field, Thayer & Co., 65 Tex. 435 (1886); Smith v. Perry, 18 Tex. 510 (1857); Holterman v. Caffall, 79 S.W.2d 178 (Tex.Civ.App.--San Antonio 1935, no writ); Blanscet v. Palo Duro Furniture Co., 68 S.W.2d 527 (Tex.Civ.App.--Amarillo 1934, no writ); B. F. Goodrich Rubber Co. v. Valley Plumbing & Supply Co., 267 S.W. 1036 (Tex.Civ.App.--Waco 1924, no writ); 52 Tex.Jur.2d Sheriffs and Constables, Sec. 17 (1964); 11 Texas L.Rev. 251 (1932).

Before Miller offered evidence to show that the property was acquired during coverture, which would give rise to the presumption that this was community property, the Sheriff introduced into evidence the deed to Nancy Shoaf containing the recitals to the effect that the land was conveyed to her as her sole and separate estate, and that the consideration was paid and to be paid out of her separate estate. As a result of the recitals in the deed, no presumption of community property existed. By the introduction of the deed containing these recitals into evidence, the Sheriff established a prima facie defense that the Amanda Street property was the separate property of the wife, Nancy Shoaf, and Not subject to execution; Article 4616. ²

Property acquired during marriage acquires its status of separate or community at the time of its acquisition. Smith v. Buss, 135 Tex. 566, 144 S.W.2d 529 (1940).

As stated in Speer, Marital Rights in Texas, Sec. 153 (4th Ed. 1961): 'The act of the spouses in taking a conveyance of property in the name of the wife, limiting the title to her separate use, unmistakably evidences an intention that the same shall belong to her separate estate.'

That the recitals of the deed constitute prima facie evidence of a gift, and that there is no presumption of community property in this case, is demonstrated by the opinion in Morrison & Hart, Ex'rs v. Clark, 55 Tex. 437, 443 (1881), as follows:

'It is unquestionably true that a conveyance of land made, whether to the husband or wife, or both, is presumed to be community if made during coverture, and especially if the consideration paid is community; but it is not true that this presumption exists where, as in the present case, the conveyance is made to the sole and separate use of the wife. And where the separate means of the husband or the community effects make up the consideration, and, the conveyance does not, as in this case it does, contain anything to indicate that it was intended as a gift, it may be shown by parol evidence that the deed was taken in the name of the wife by direction of the husband with the intention of making it her separate estate * * *. There is no necessity of such proof here. The intention that the property should be the separate property of the wife is stamped upon the face of the deed, and all of the world has notice of that fact. Kirk v. (Houston Direct) Navigation Co., 49 Tex. 213 (1878).'

It is similarly stated in Kahn v. Kahn, 94 Tex. 114, 58 S.W. 825, 826 (1900) that:

'Another class of cases has arisen in which third persons have conveyed property to the wife during marriage by deed showing a purpose to make it her separate estate, either by directly so stating, or by a recitation that it is conveyed as a gift, or that the consideration was paid out of her separate estate. McCutchen v. Purinton, 84 Tex. 603, 19 S.W. 710 (1892); Morrison v. Clark, 55 Tex. 437 (1881). In these cases it was held that the purpose expressed in the deeds to vest title in the wife separately was prima facie evidence that it became her separate property, even against creditors of the husband or of the community; the opinions, of course, conceding the right of creditors to attack the conveyance in the same way in which they might attack any conveyance from husband to wife.'

The trial court held that the Amanda Street property was community property and subject to execution, and rendered judgment for Miller for the full amount of its prior judgment, together...