Joy v. Sachs

• Decision Date: 25 January 1936
• Docket Number: No. 11870.,11870.
• Citation: 91 S.W.2d 415
• Parties: JOY v. SACHS.
• Court: Texas Court of Appeals

91 S.W.2d 415

JOY v. SACHS.

No. 11870.

Court of Civil Appeals of Texas. Dallas.

January 25, 1936.

Dissenting Opinion January 29, 1936.

Rehearing Denied February 22, 1936.

Appeal from District Court, Dallas County; Towne Young, Judge.

Suit by M. A. Joy, individually and as executor of the estate of his deceased wife, E. G. Joy, against Guy S. Sachs. From a judgment for defendant, plaintiff appeals.

Affirmed.

Bond & Porter, of Terrell, for appellant.

N. B. Halporn, of Dallas, for appellee.

LOONEY, Justice.

Both in his individual capacity and as executor of the estate of his deceased wife, M. A. Joy, appellant brought this suit against Guy S. Sachs, appellee, to recover a diamond finger ring, and, in the alternative, its value, alleged to be $1,000. Appellant, in substance, alleged that the ring was his separate property, or, if not, that it belonged to the community of himself and deceased wife, Mrs. E. G. Joy; that on or about November 1, 1931, his wife borrowed from appellee the sum of $300, executed a note evidencing the indebtedness, and a chattel mortgage on the ring in question, delivered possession of same to appellee, as security for the note; that said transaction was without the knowledge or consent of appellant; that the money was not borrowed by his wife or the mortgage given to enable her to purchase necessaries, as appellant furnished all means and necessaries required for her maintenance and comfort; hence the entire transaction between appellee and Mrs. Joy was void; wherefore appellant sought judgment as before stated.

Appellee answered that the diamond ring in question was the separate property of Mrs. Joy, and that she was authorized to mortgage same to secure payment of the note and, further, that she was estopped by her conduct and representations to deny that the ring was owned in her separate right, and that, for the same reason, appellant, as her executor, is estopped to deny such fact; wherefore appellee prayed that appellant take nothing by reason of his suit, and that the lien on the ring be foreclosed and the same sold, for the satisfaction of said note and interest.

The case was tried without a jury, resulting in judgment in favor of appellee, to the effect that appellant take nothing, and foreclosing appellee's lien on the ring, and ordering same sold for satisfaction of the debt, from which this appeal was taken.

The court filed findings of fact and conclusions of law, finding, among other things, that the ring in question belonged to Mrs. E. G. Joy in her own separate right, that she had the legal right to create the chattel mortgage lien on the same, as security for the payment of the debt, and that appellee was entitled to have his lien foreclosed, and the property sold in satisfaction of the debt. The court also made findings and conclusions favorable to appellee on the issue of estoppel, but we do not deem it necessary to give further notice to that issue.

The finding and conclusion of the trial court on the issue as to the ownership of the ring at the time Mrs. Joy executed the mortgage, and as to appellee's right to have the lien foreclosed, are vigorously assailed by appellant, his contention being that the evidence conclusively established the fact that the ring was not the separate property of Mrs. Joy, but belonged to the community estate of himself and deceased wife. The above, we think, presents the controlling question for decision, and its determination depends upon the sufficiency of the evidence to establish a gift of the ring by appellant to his wife.

As the testimony of appellant is the only evidence adduced on the issue, the same is set out in full, as follows: Appellant testified that he and his deceased wife were married about 41 years, was then questioned by his attorney, and answered as follows:

"Q. Mr. Joy: Were you the owner of a diamond ring, as testified about and described in this law suit? A. Yes, sir. * * *

"Q. When and where and how did you secure the ring? A. Bought it in Memphis, Tennessee, when Mrs. Joy and I were stopping at a hotel. * * *

"Q. Now, did Mrs. Joy possess that ring, that is to say, was it given to her as her separate property or part of the estate like any other property you had? A. Part of the estate, together with numerous other diamonds that she had and I had—that we had at different times.

"Q. Did you ever give Mrs. Joy permission to sell or hypothecate this ring to this man, the defendant in this case? A. I did not."

On cross-examination, the following questions were asked and answers given:

"Q. Mr. Joy: You stated you got this ring some (35) thirty-five years ago, approximately? A. Yes, sir.

"Q. When did you give this ring to Mrs. Joy? A. I didn't give it to her.

"Q. When did it get into her possession? A. She put it on when I bought it, she put it on and wore it usually, not all the time. She had quite a number of rings, and she wore it usually together with others, changing and interchanging.

"Q. When is the first time she started wearing it? A. When I bought it.

"Q. That is approximately thirty-five years ago? A. Something like that.

"Q. Can you remember the exact verbage thirty-five years, that you said, `Take it, and it goes into the estate.' You said that awhile ago? A. I didn't make any such statement. I bought it, and paid for it, and I put it on her finger, and as I said, during our married life from that time on, she wore it off and on from time to time, together with other rings.

"Q. You didn't give it to her at that time? A. No.

"Q. She put it on and wore it? A. Yes."

The witness testified that the first he knew of his wife's transactions with appellee was some time after her death; that his housekeeper, finding an instrument relating to the matter, called same to his attention; he was then asked: "Didn't you miss seeing her wearing the ring during that nine months, during the nine months from the time she got the loan until the time of her death, which was a period of approximately nine months? A. I don't recall, because, as I stated, she changed her jewelry from time to time, wore this ring and that one, differently; I don't recall anything about the particular jewels that she wore at any particular time."

Stripped of conclusions and surplusage, the testimony of appellant is to the effect that about 5 or 6 years after their marriage, while he and his wife were stopping at a hotel in Memphis, Tenn., he purchased the ring in question, paying for it with money acquired during their marriage, that he put the ring on his wife's finger at the time it was purchased, which was about 35 years prior to her death, and that afterwards, during their married life, she possessed and wore the ring as she chose.

This evidence, in our opinion, amply supports the findings and conclusions of the trial court, and they are adopted as our conclusions on the issue.

The common-law rule, to the effect that husband and wife are one person, that there could be no contracts, conveyances, or gifts between them, that jewelry and wearing apparel received from the husband by the wife during coverture remained his personal property, with the right of disposition, is not and never has been the rule of law in this state. 23 Tex.Jur. p. 155, § 125.

In view of the marital relationship, especially in view of the husband's powers of management, control, and disposition of community property, only slight evidence is required to support the presumption of a gift from husband to wife, such as is evidenced by deed from him, conveying property to his wife; the taking by him from another of a deed conveying property to her; and the deposit by him of money in her name, each of such acts, without more ado, raises the presumption of a gift and justifies the conclusion that it was the intention of the husband to make the property conveyed and the money deposited the separate property of the wife. See German Ins. Co. v. Hunter (Tex.Civ.App.) 32 S.W. 344; Saylor v. Saylor (Tex.Civ.App.) 20 S. W.(2d) 229; Hickman v. Hickman (Tex. Civ.App.) 20 S.W.(2d) 1073.

The case of Collins v. Austin (Tex.Civ. App.) 32 S.W.(2d) 912, by the Beaumont Court (writ refused), in our opinion, is directly in point. In that case, on facts very similar but less potent, the court held that jewelry bestowed by the husband on the wife, and possessed by her about 3 years, was a gift, vested separate title in her, and that a mortgage given to secure a loan from the bank, made over the husband's protest and without his consent, was valid and enforceable. The doctrine of that case, in our opinion, rules the instant case.

For reasons stated, the judgment of the lower court is affirmed.

Affirmed.

BOND, Justice (dissenting).

The controlling question in this controversy is, Who owned the property involved at the time it was mortgaged? If it belonged to the separate estate of Mrs. M. A. Joy, then she had a legal right to mortgage it for the debt she had contracted, Collins v. Austin (Tex.Civ.App.) 32 S.W.(2d) 912; on the other hand, if it was at that time community property, it is conceded that she had no such right, there being no evidence of the existence of those conditions which confer upon the wife the right to control and dispose of community property.

The testimony is not conflicting upon the question involved. The proof shows that, when originally acquired, the diamond ring was purchased with funds belonging to the community, and was at that time community property. It remained community property, unless the uncontradicted testimony of the appellant had the legal effect of passing the community title to that of the separate estate of the wife. That such was not Mr. Joy's purpose is manifest from his testimony: Mr. Joy testified that he did not give the ring to his wife; that, when he purchased it, about 35 years ago, he put it on his wife's finger, or she herself put it on, and wore it "usually not all the time. She had quite a number of rings and s...