Kahn v. Kahn
Decision Date | 25 October 1900 |
Citation | 58 S.W. 825 |
Parties | KAHN v. KAHN. |
Court | Texas Supreme Court |
Action by Amelia Kahn against H. C. Kahn. From a judgment of the court of civil appeals (56 S. W. 946) affirming a judgment of the district court granting plaintiff part of the relief prayed for, plaintiff brings error. Reversed.
J. T. Montgomery, for plaintiff in error. W. W. Flood and A. A. Hughes, for defendant in error.
Plaintiff in error, the divorced wife of defendant in error, brought this action against him to recover, among other things, two pieces of real estate, claiming that, though acquired during marriage, it was her separate property. The defendant, on the other hand, asserted that the property belonged to the community estate, and pleaded specially, in substance, that recitals in the deeds by which the titles were put in the name of plaintiff—that the considerations were paid out of her separate fund—had been inserted by mistake of the draftsman, without the knowledge or consent of either plaintiff or himself, the fact being that the property had all been paid for with community funds, and the intention of all parties being to acquire it for the community estate. The judgment of the district court gave plaintiff one half of the price of the property and the defendant the other half, and gave plaintiff nine-fourteenths and defendant five-fourteenths of the other piece, which is the north half of lot 13 in block 153 in Wichita Falls. The judgment also charged defendant with rents of the last-mentioned piece of the property, of which he had been in possession, and with moneys paid out by plaintiff for taxes upon community estate, and charged plaintiff with rents of the other piece of property, of which she had held possession after the divorce; leaving a small balance in plaintiff's favor. This judgment was affirmed by the court of civil appeals, and this writ of error was granted upon assignments attacking the rulings upon questions affecting the title to the north half of lot 13 alone. That property had been first conveyed to Mrs. Kahn by one Meyer during the marriage, the consideration being $525, made up of $200 of her separate funds, $50 separate funds of her husband, and the remainder of community funds. Upon the representation of her husband that such a step was necessary in order to secure a loan to improve the property, Mrs. Kahn joined him in a deed conveying it to J. H. Barwise, Jr., and the latter conveyed it to Kahn. No loan having been effected, and the wife demanding that the property be reconveyed to her, Kahn executed and delivered to her a warranty deed conveying to her the property, which was in the ordinary form of such deeds except that before the granting clause it recited a consideration of $500 "paid by Amelia Kahn out of her separate funds, and for her separate use and benefit." The defendant was permitted, over objection of plaintiff, to offer parol evidence for the purpose of showing that he did not intend by this deed to convey to his wife in her separate right his interest in the property. The substance of his evidence was that the purpose of the conveyance was to keep peace in the family, as his wife was making a disturbance, and demanding that the property be reconveyed to her; that he did not intend by the deed to convey it to her, or to make it her separate property, and had always so stated. The charge of the court made the determination of the question whether or not the land belonged to the community or to the separate estate of the wife depend upon the fact to be determined from the evidence,—whether or not Kahn intended by the deed to make it such. We are of opinion that, without proof of fraud or mistake in the insertion of the recitals in the deed, parol evidence was not admissible to show that the maker of it did not intend to convey the property to his wife as her separate property, and this for the reason that the deed on its face clearly expressed such intent. In consideration of the fact that the property of husband and wife may consist of separate property of either or of community property of both, and that the legal title to property may be in either spouse while the equitable title may be in the other, or in the community estate, this court has laid down very liberal rules allowing parol evidence to show the true status of the title, often depending upon intentions and agreements not appearing from the title papers.
Most of the discussion has been as to the effect of deeds from third persons to the wife, and it has been settled that, if the deed show nothing to the contrary, the presumption is that property conveyed to her during marriage is community property; but it may be shown to be in equity her separate property by proof that her separate estate furnished the consideration; or it may be shown that the husband paid the consideration out of his separate funds, and caused the deed to be made to the wife, in which case the presumption arises that he intended it as a gift to her, which presumption also may be rebutted by parol evidence showing a different intent; or it may be shown that the husband paid the consideration out of the community estate,...
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