Keys v. Tarrant County Building & Loan Ass'n

• Decision Date: 13 May 1926
• Docket Number: (No. 362.)
• Parties: KEYS et al. v. TARRANT COUNTY BUILDING & LOAN ASS'N.
• Court: Texas Court of Appeals

286 S.W. 593

KEYS et al. v. TARRANT COUNTY BUILDING & LOAN ASS'N.

(No. 362.)

Court of Civil Appeals of Texas. Waco.

May 13, 1926.

Rehearing Denied July 1, 1926.

Appeal from District Court, Tarrant County; H. S. Lattimore, Judge.

Suit by the Tarrant County Building & Loan Association against Elmer A. Keys and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Houtchens & Clark, of Fort Worth, for appellants.

Samuels & Brown, of Fort Worth, for appellee.

GALLAGHER, C. J.

This appeal is prosecuted by Elmer A. Keys, Mrs. Lillie E. Keys, and her husband, J. E. Keys, who seek to reverse a judgment of the district court in favor of Tarrant County Building & Loan Association, awarding a recovery in favor of said association against Elmer A. Keys for the sum of $2,349.80 and against all said appellants for a foreclosure of lien on a certain lot of land with the improvements thereon. The case was tried before the court. No findings of fact were filed and none requested. There is evidence that said Lillie E. Keys and said J. E. Keys are husband and wife, and that they are the parents of said Elmer A. Keys; that some 12 or more years ago said Keys abandoned his wife and family and has continuously since lived separate and apart from them. After such abandonment the family consisted of Mrs. Keys and five minor children, the oldest, a girl, being about 14 years of age at that time. Mrs. Keys assumed the responsibility of maintaining herself and children. She and such of her children as were old enough worked for wages. The wages of the children were turned over to her and used in supporting the family. There is some evidence that the husband made small contributions from time to time. His testimony concerning such contributions is in some things contradictory and in general extremely indefinite, and such that the trial court in his discretion was justified in according but little, if any, weight. Viewing his evidence in the most favorable light, such contributions were made on rare occasions only and in comparatively trivial amounts, and nearly always to his baby girl. The testimony was wholly insufficient to show an attempt on his part to make any material provision for the support of his children, much less the support of both them and his deserted wife. Some time in May, 1920, Mrs. Keys bought in her own name the lot of land involved in this suit. The consideration recited in the deed was $100 cash and a vendor's lien note for $100, payable in monthly installments of $5 each. Said deed further recited that Mrs. Keys was a widow. She did not consult her husband about the purchase of said land, and he had nothing to do with the transaction, though he claims that he sent $30 to his baby girl from Abilene about that time, and that he knew that said money would be used in making the cash payment on said land, and that he was willing for it to be so applied. How he knew such fact was not disclosed.

The lot remained vacant until August, 1922. Mrs. Keys and three of her children still residing with her were then living in rented rooms. At that time a contractor named Middleton, who was a neighbor and friend of the family, discussed with Mrs. Keys and Elmer the matter of building a house on said lot. They agreed on the kind of a house to be built, and that Middleton should build it. It seems that Middleton undertook to aid in securing a loan to finance such building, and on August 25, 1922, Middleton and Elmer approached the appellee with reference to making a loan to enable them to build said house. Elmer at that time applied to appellee for a loan of $2,800 to be used for such purpose. In this connection it was stated to appellee that the lot was owned by Mrs. Keys, but that Elmer and his brother would pay for the house, and that Elmer and his mother would occupy it. Some one, probably appellee's loan agent, suggested that inasmuch as Elmer was borrowing the money to build the house, that Mrs. Keys ought to convey the lot to him. Elmer made an affidavit before appellee's loan agent as a notary public that he was a single man, that he had never been married, that Mrs. Keys was then a widow, and that she was a widow when said lot was purchased by her. This affidavit was made several days before the formal application and apparently at the inception of the negotiations for the loan. On the next day after the making of said application Mrs. Keys made a deed conveying said lot to Elmer, and acknowledged the same as a feme sole. Elmer's application was accepted for the sum of $1,800, and by common consent the Exchange State Bank advanced the money to build the house and took a deed of trust on the lot from Elmer to secure the same. Immediately on completion of the house appellee, as was contemplated by all the parties from the beginning, took a note from Elmer for $1,800 and a deed of trust from him on said lot to secure such note. Appellee then advanced said sum of money, and the same was used to repay the money advanced by the Exchange State Bank. There is nothing in the record tending to show that Mrs. Keys intended by said transaction to defeat the rights and interest of her husband in said property. The evidence is sharply conflicting, but the trial court would have been justified in finding therefrom that appellee had no notice of the fact that Mrs. Keys was a married woman without a divorce from her husband, that it relied on the recital in the deed and the affidavit of Elmer and believed that she was a widow at the time of the purchase of said lot and at the time of said conveyance, and that it would not have made the loan but for such reliance and belief. The trial court would also have been justified in finding from the evidence that Mrs. Keys and Elmer were acting together in the matter of securing said loan and building said house, and that he was authorized to represent her and act for her in the premises. Elmer paid altogether the sum of $80 on said loan. About a year after it was made appellee declared the whole amount thereof due under the terms of the note and deed of trust.

Elmer Keys was at the time of the transaction a minor. No question concerning his age seems to have been raised. He represented himself as a single man, employed as a conductor by the traction company, and stated that he had been employed by said company for several years. Appellee's loan agent, who conducted all negotiations, testified that there was nothing reasonably calculated to raise any question as to Elmer's being under age, and that he never suspected that he had not attained his majority, but on the other hand considered from all the circumstances that he was of age and capable of transacting his own business. Elmer became of age during the pendency of this suit. He was married, and his wife was living in the house at the time of the trial. He testified that on becoming of age he repudiated the debt. He further declared in his testimony that he claimed no interest in said house or premises, but such disclaimer seems to have been in the interest of his mother, since he joined in the prayer asking that the deed of trust be canceled and removed as a cloud and that his parents be quieted in the title to said property.

Opinion.

The finding in favor of appellee herein being general, every issuable fact must be considered as found in its favor if there is any evidence to support such finding. In passing upon the sufficiency of the evidence to sustain each such finding we must view the same in the light most favorable thereto, rejecting all evidence favorable to the opposite contention and considering only the facts and circumstances which tend to sustain such finding. Hines v. Kansas City Life Ins. Co. (Tex. Civ. App.) 260 S. W. 688, 690, and authorities there cited.

The lot in question in this case was acquired during the existence of the marriage relation between Mrs. Lillie Keys and her husband, J. E. Keys, and for a valuable consideration paid and to be paid in the future. It was not acquired by gift, devise, or descent, and was therefore by the express terms of Article 4622, Complete Texas Statutes, 1920, community property. See, also, Routh v. Routh, 57 Tex. 589; Merrell v. Moore, 47 Tex. Civ. App. 200, 104 S. W. 514; Gutheridge v. Gutheridge (Tex. Civ. App.) 161 S. W. 892. It was vacant at the time appellant agreed to lend the money to erect the house and at the time the Exchange State Bank agreed to advance the money to erect the building and took its deed of trust to secure such advancement on the assurance that appellee would take over the loan upon the completion of the building. The erection of a house on said lot in pursuance of said arrangements did not impress it with the homestead character as against the lien given to secure said loan. Swope v. Stantzenberger, 59 Tex. 387, 390, 391; Clem Lumber Co. v. Elliott Lumber Co. (Tex. Com. App.) 254 S. W. 935, 938.

Mrs. Keys, having been abandoned by her husband and left without a home and also without means of support, had a right to sell and incumber the community property to provide for the necessities of herself and her children without the consent or joinder of her husband. She was forced by reason of her husband's abandonment to perform the duties and assume the responsibility of the head of the family, and she became at the same time entitled to exercise the rights and privileges of such position. The law in such cases gives the abandoned wife a wide discretion and broad authority to use, improve, and dispose of the community property, even though it was acquired prior to such abandonment. Mrs. Keys acquired the particular lot involved on her own initiative, and the purchase money was paid largely if not entirely out of her savings from the wages of herself and her children. She had no homestead, but was living in rented rooms. This lot was doubtless acquired for the purpose of improvement and occupancy as a home when her circumstances permitted...