Kellett v. Trice

• Court: Texas Supreme Court
• Writing for the Court: Williams
• Citation: Kellett v. Trice, 66 S.W. 51, 95 Tex. 160 (Tex. 1902)
• Decision Date: 16 January 1902
• Parties: KELLETT v. TRICE.

66 S.W. 51

KELLETT v. TRICE.

Supreme Court of Texas.

January 16, 1902.

Certified questions from court of civil appeals of Third supreme judicial district.

Action for divorce by Callie R. Trice (formerly Kellett) against William M. Kellett.

Judgment for defendant was modified by the court of civil appeals (56 S. W. 766), and questions certified.

A. C. Prendergast and L. W. Campbell, for appellant. Wm. L. Prather and Clark & Bolinger, for appellee.

WILLIAMS, J.

Certified questions from the court of civil appeals for the Third district. The certificate states that this was an action by appellee against appellant for a divorce, and for the adjustment of their rights of property, and to set aside the deeds hereinafter stated. After the divorce was granted, the deeds were set aside, and the questions certified arise in this branch of the case.

The circumstances under which the deeds were executed were that plaintiff and defendant had a disagreement, in which plaintiff was in fault. Defendant left home, and remained away from December 9, 1896, until January 24, 1897, when he returned, and remained at home until after the suit for divorce was brought, May 21, 1898. On the 22d day of January, 1897, plaintiff and defendant joined in the following deed to E. Rotan, trustee: "The State of Texas, County of McLennan. Know all men by these presents, that we, W. M. Kellett and Callie R. Kellett, husband and wife, in consideration of one dollar, from each to the other paid, and for the purpose of devesting the separate estate and title of us and each of us in and to the property (hereinafter described) in which each of us shall hereafter own, hold, have, and enjoy an equal undivided community interest, to the end that all of the same may stand and be as all other property now owned by us, viz., community property, regardless of in whose name the title thereto may stand, and thereby avoid any further necessity of keeping separate accounts of the increase thereof, of the income therefrom, of the expenses of improvements, repairs, insurance, and all other expenses thereon, and that all of the expenses and improvements thereon and on all other of our property may be paid and made from a common fund, and all increase, profit, and income of every kind whatsoever from said property hereinafter described shall be and become after this date community property under the laws of the state of Texas; and for the further consideration and purpose of settling all questions now or which may hereafter arise between us, and avoiding any question hereafter between our respective heirs upon the death of either of us; and in consideration of five dollars, to us in hand paid by E. Rotan, trustee, for the purposes herein named,—have bargained, sold, assigned, transferred, and conveyed, and do by these presents bargain, sell, assign, transfer, and convey, unto the said E. Rotan, trustee, the following described property, situated in the city of Waco, county of McLennan, and state of Texas, to wit. [The property described consists of several parcels of real estate and two hundred and thirty-eight shares of bank stock.] Together with all and singular the rights, members, hereditaments, and appurtenances to the same belonging or in any wise incident or appertaining; to have and to hold all and singular the premises and property above mentioned unto the said E. Rotan, his heirs and assigns, forever, in trust for the purpose of conveying the same to the said W. M. Kellett as the community property of the said W. M. Kellett and Callie R. Kellett, and we do hereby bind ourselves, our heirs, executors, and administrators, to warrant and forever defend all and singular the said premises unto the said E. Rotan, trustee, his heirs and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof. Witness our hands this, the 22nd day of January, A. D. 1897. Wm. M. Kellett. Callie R. Kellett." All of the real property and 130 shares of the stock described were the separate property of plaintiff. The other 108 shares of stock were community property. This deed was freely and voluntarily executed by both parties, acting under advice of their respective attorneys, and was duly acknowledged by plaintiff as a married woman. The only purposes and considerations were those recited. On the 23d day of January, 1897, Rotan executed and delivered the following instrument: "The State of Texas, County of McLennan. Know all men by these presents, that I, E. Rotan, trustee, of said county and state, for and in consideration of $10, to me in hand paid by Wm. M. Kellett, and in further consideration of and for the purpose of carrying into effect the object and purpose of the conveyance to me by said Wm. M. Kellett and his wife, Callie R. Kellett, dated January 22nd, 1897, of the hereinafter described property, and under and by virtue of the power to me in said conveyance given, and in obedience and compliance therewith, have bargained, sold, assigned, transferred, and conveyed, and by these presents do bargain, sell, assign, transfer, and convey, unto the said Wm. M. Kellett, the following described property, situated in the city of Waco, and county of McLennan, and state of Texas, viz. [Here follows an accurate description of all the property conveyed.] All of which is and shall be the community property of said Wm. M. Kellett and his said wife, Callie R. Kellett, under the laws of the state of Texas; together with all and singular the rights, members, hereditaments, and appurtenances to the same belonging or in any wise incident or appertaining; to have and to hold all and singular the premises and property above mentioned unto the said Wm. M. Kellett as such community property, his heirs and assigns, forever. Witness my hand this January 23rd, 1897. E. Rotan, Trustee."

The questions asked are as follows: "(1) Do the facts recited in the deed or contract executed by appellant and appellee to Rotan constitute a valuable consideration? (2) Can the wife, by conveyance in the manner indicated in the above deed, when joined by her husband in the manner required by statute, convert her separate estate into the community estate of herself and husband? (3) Is a valuable consideration resulting to the wife necessary in order to support such a conveyance?"

On the side of the appellant it is asserted that the transaction was a lawful exercise of the wife's statutory power to convey her saparate property, and that thereby her title was conveyed to her husband, and made a part of the community estate. On the other side it is urged that the instruments, although having the form of conveyances, could not legally operate as such, but disclosed merely an attempt by the agreement of husband and wife to convert that which the law made separate property of the latter into common property of the two. On a former appeal the court of civil appeals sustained the latter contention (Kellett v. Kellett, 56 S. W. 766), and, after due consideration of the arguments of both parties and the authorities relied on, this court is of the opinion that the conclusion was correct. It is settled by the decisions in this state that married women have no power, except such as is affirmatively given by statute, to bind themselves personally by contracts. Wadkins v....