Hitchcock v. Cassel, 10279

• Decision Date: 19 January 1955
• Docket Number: No. 10279,10279
• Citation: 275 S.W.2d 205
• Parties: Harley M. HITCHCOCK et al., Appellants, v. Mae Nixon Hitchcock CASSEL et vir., Appellees.
• Court: Texas Court of Appeals

Page 205

275 S.W.2d 205

Harley M. HITCHCOCK et al., Appellants, v. Mae Nixon Hitchcock CASSEL et vir., Appellees.

No. 10279.

Court of Civil Appeals of Texas, Austin.

Jan. 19, 1955.

Russell G. Ferguson, Thomas F. Ryan, Austin, for appellants.

Emmett Shelton, austin, for appellees.

HUGHES, Justice.

This suit is between a mother and her two children and involves the ownership of a house and lot located at 4008 Burnet Road in Austin, Travis County. Texas. The mother, Mrs. Mae Nixon Hitchcock Cassel, claims, and was awarded in a nonjury trial in the court below, the entire property. ¹ The children, appellants Harley M. Hitchcock and Mrs. Jessie Mae Hitchcock Hogan, claim jointly an undivided one half interest therein. Their claim is based solely upon their status as heirs of their deceased father, J. B. Hitchcock, who died intestate July 26, 1943.

This suit was commenced by appellants as an action for partition and for an accounting, alleging the property to be owned one half by them and one half by their mother.

Appellee answered by claiming all the property basing her claim upon the five, ten and twenty-five year statutes of limitation, Arts. 5509, 5510 and 5519, R.C.S.1925, Vernon's Ann.Civ.St. arts. 5509, 5510, 5519, and upon estoppel en pais.

By trial amendment she pleaded that the property was her homestead ² and therefore not subject to partition. Mrs. Cassel also filed a cross-action against Harley Hitchcock for debt. The prindipal material undisputed facts are these:

J. B. Hitchcock and appellee were husband and wife on and for many years prior to December 29, 1931, on which date W. B. Hitchcock, their adult son, entered into a contract for the purchase of the property in question. This son died December 16, 1933.

On March 19, 1934, such property was coveyed to appellee 'a married woman' by general warranty deed.

On November 2, 1935, appellee sued her husband, J. B. Hitchcock, for divorce, alleging that he had abandoned her on or about September 20, 1930, and that there were no minor children. No property rights were alleged. Divorce was granted on February 5, 1936, the decree finding as true the allegations above mentioned. No adjudication was made as to any property or property rights. ³

Appellee was living on the premises involved when the divorce was granted and she continued to reside there until 1946 since which time the place has been rented, off and on, and she has not made nor been asked to make, prior to this suit, any accounting of the rents.

Appellee never denied either of appellants entry on the premises and her daughter has stayed with her on numerous occasions for varying periods of time, some as long as two or three months.

Other material undisputed facts as well as the many disputed ones will be referred to hereafter only as required to properly dispose of this appeal.

The trial court, among other findings, found that J. B. Hitchcock, the father, had actual and constructive notice on February 5, 1936, date of divorce from appellee, that appellee was claiming the entire fee simple title in the lot as her separate property and estate and was claiming adversely to any interest which J. B. Hitchcock might be asserting at such time and that such facts were known to Mr. Hitchcock and appellants since such time.

The trial court also made findings as to the adverse possession of the property since February 5, 1936, and concluded that appellee had perfected title under both the five and ten year statutes of limitation.

Appellee has abandoned her claim that title has been perfected under the five year statute and we need notice only her claim of title under the ten year statute. Before doing so we will endeavor to clearly state our view of the law under the undisputed facts, above stated, as it relates to the status of the property.

The property belonged to the community estate of appellee and her deceased husband because it was acquired during their marriage by purchase and not by gift devise or descent. Arts. 4613, 4614 and 4619, R.C.S.1925, Vernon's Ann.Civ.St. arts. 4613, 4614, 4619. The fact that the husband had abandoned appellee at the time of the purchase and paid no part of the consideration therefor is immaterial insofar as the community status of the property is concerned. Speer's Law of Marital Relations, Sec. 514, quoted in Freeman v. Pierce, Tex.Civ.App.Dallas, 250 S.W. 778.

To sustain her limitation plea appellee relies, in part, upon certain incidents which occurred prior to the divorce such as refusing her husband admittance to the house and her statements at the time but we will not detail these matters for the reason that neither spouse can claim adversely to each other, under Art. 5510, during the marriage. Hardin v. Hardin, Tex.Civ.App.Texarkana, 217 S.W. 1108,

Appellee and J. B. Hitchcock having dissolved their marriage...