Jenkins v. Hutchens, 3197

• Decision Date: 06 January 1956
• Docket Number: No. 3197,3197
• Citation: 287 S.W.2d 295
• Parties: Floy Mae JENKINS et vir, Appellants, v. F. M. HUTCHENS et al., Appellees.
• Court: Texas Court of Appeals

Page 295

287 S.W.2d 295

Floy Mae JENKINS et vir, Appellants, v. F. M. HUTCHENS et al., Appellees.

No. 3197.

Court of Civil Appeals of Texas, Eastland.

Jan. 6, 1956.

Rehearing Denied Jan. 20, 1956.

Further Rehearing Denied Feb. 10, 1956.

Scarborough, Yates, Scarborough & Black, Abilene, T. R. Odell, Lubbock, for appellants.

Ratliff & Ratliff, Tom Davis, Haskell, for appellees.

COLLINGS, Justice.

This is a partition suit brought by Floy Mae Jenkins and husband, Marvin W. Jenkins, against F. M. Hutchens and others. Plaintiffs alleged, among other things, that Lillie Mae Hutchens, deceased wife of the defendant, F. M. Hutchens, and mother of plaintiff Floy Mae Jenkins, during her lifetime, to-wit: on November 27, 1936, acquired by deed from her brother, J. T. Hester and his wife, as her separate property a 111 acre tract of land. The status of this tract as the separate property of Lillie Mae Hutchens, deceased, or community property of herself and husband F. M. Hutchens, is the principal question in controversy. Plaintiff, Floy Mae Jenkins, alleged she was entitled to one-half of the separate property of her mother and prayed judgment establishing her undivided one-half interest therein and that a partition be had awarding to her the proportionate part to which she was entitled.

The defendant, F. M. Hutchens, answered that he had purchased the 111 acre tract in question in 1936 from Roy Lee Hester and wife for $2,200, of which $200 was paid in cash and the balance was evidenced by a note for $2,000; that the cash payment was from community funds; that the note was a community debt and was paid in full out of community funds. He further alleged that any recitals in the deed to the effect that the land was paid for out of separate funds of his wife, Lillie Mae Hutchens, were not true; that it was the intention of appellee and his wife that the land was to be community property and his wife never claimed it as her separate property; that he knew nothing about the recitals in the deed. He further alleged that he had had no experience with deeds; that the deed was drawn for the grantors by a man who was not a lawyer and is now deceased; that he relied upon the one preparing the deed and accepted it without question and filed it for record. He alleged that he did not direct that the deed be made to his wife; that he did not examine it, and did not read it; and if he had read it, he would not have known that the language defeated the purpose and intention of himself and his wife that the land should be their community property. He also alleged that he did not intend to make a gift to his wife and did not believe that she understood that a gift was being made to her.

Two 111 acre tracts of land are involved. All parties agree that one of the 111 acre tracts was deeded to Lillie Mae Hutchens by her father in 1924 as her separate property. This tract will be referred to as the first tract. The second 111 acre tract which joins and lies to the south of the first tract was conveyed to Lillie Mae Hutchens by her brother, Roy Lee Hester and his wife, by a deed dated November 27, 1936 and is the land the status of which is here in controversy. This deed recites that it is 'for and in consideration of the sum of Two Thousand Two Hundred ($2,200) Dollars to us paid, and secured to be paid, by Lillie Mae Huchens out of her separate funds as follows: $200 cash in hand paid, the receipt of which is hereby acknowledged, and confessed. And the execution of one certain vendor's lien note for the sum of $2,000, made payable to the order of Roy Lee Hester on or before January the first 1947. * * * Have granted, sold and conveyed and by these presents do grant, sell and convey unto the said Lillie Mae Hutchens for her own separate use and benefit * * * 111 acres of land * * *.'

The case was tried before a jury which found in answer to special issues that the 111 acre tract in controversy was community property of F. M. Hutchens and wife and that Hutchens did not know that the deed from Roy Lee Hester and wife by its terms conveyed the said 111 acre tract to his wife, Lillie Mae Hutchens, as her separate property. Based upon the jury findings, judgment was entered decreeing the said 111 acre tract to be the community property of F. M. Hutchens and his deceased wife. It was further decreed that the said 111 acre tract, together with the first 111 acre tract acquired by Lillie Mae Hutchens from her father in 1924, as her separate property, aggregating 222 acres, be, and the same was, set aside as the homestead of F. M. Hutchens, surviving husband of Lillie Mae Hutchens. Floy Mae Jenkins and her husband have brought this appeal.

In appellants' first point it is contended that, as a matter of law, the deed to the 111 acre tract in controversy from Roy Lee Hester and wife to Lillie Mae Hutchens vested title thereto in Lillie Mae Hutchens as her separate property and that the court erred in overruling and in not granting appellants' motion for judgment notwithstanding the verdict. Appellants point out that the deed in question recites that the consideration therefor was paid and secured to be paid by Lillie Mae Hutchens out of her separate funds and that the land described therein was conveyed to her for her own separate use and benefit. The evidence shows that appellee, F. M. Hutchens, and his wife, Lillie Mae Hutchens, signed and executed the $2,000 vendor's lien note...