King v. King

• Decision Date: 02 February 1927
• Docket Number: (No. 7690.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 291 S.W. 645
• Parties: KING v. KING.
• Court: Texas Court of Appeals

291 S.W. 645

KING v. KING.

(No. 7690.)^*

Court of Civil Appeals of Texas. San Antonio.

February 2, 1927.

Rehearing Denied March 2, 1927.

Appeal from District Court, Cameron County; A. M. Kent, Judge.

Suit for divorce by Mrs. Nettie G. King against W. O. King, in which defendant filed a cross-action for one-half of the rents of property. From a judgment for plaintiff, defendant appeals. Affirmed.

See, also, 279 S. W. 899.

Spears & Montgomery, of San Benito, for appellant.

Seabury, George & Taylor, of Brownsville, for appellee.

COBBS, J.

Appellee brought this suit against appellant for a divorce, and appellant sued appellee by way of cross-action to recover certain sums of money as damages for rent, etc.

Appellee alleged that appellant was guilty of excesses, cruel treatment, and outrages against her of such a nature as to render their living together insupportable. Appellant answered by general denial, and by cross-action set up that by final judgment of the district court of Cameron county, rendered April 9, 1919, it had been adjudged that lot 1, block 31, in San Benito, together with the improvements thereon, belonged to appellee in her separate right, and constituted the homestead of appellee and appellant; that, prior and subsequent to the rendition of said judgment, appellee had collected the rents and revenues arising from said property in the sum of $55,000, and had applied all of the same to her own use and benefit in fraud of the rights of appellant; that he supposed such rents and revenues were appellee's separate property until the Supreme Court, in Arnold v. Leonard, 114 Tex. 535, 273 S. W. 799, had declared unconstitutional that part of the Act of April 4, 1917, c. 194, § 1, and chapter 130, § 1, of the acts of the Thirty-Seventh Legislature, amendatory of article 4621, Revised Statutes 1911, providing that the rents and revenues arising from the separate property of a married woman was her separate property. He prayed for an accounting by appellee for said rents and revenues, and that he have the control and management of same, and, in the alternative, that he was aged, infirm, and in ill health, was without means for his support and maintenance, and was unable to work, and moved that appellee be required to pay to him during the pendency of the suit monthly a sufficient amount to enable him to support and maintain himself, and procure proper medical treatment.

Appellee, in answer to said cross-action, filed a plea that the judgment by which said lot 1, block 31, San Benito, and the improvements thereon had been declared the separate property of appellee, also declared and adjudged that the rents and revenues theretofore and thereafter arising from said property, were the separate property of appellee, and that appellant had no right therein whatever, and that by reason of said judgment he was barred from claiming any such rights in this suit.

The parties to this controversy were married on September 16, 1905, and lived together as husband and wife until the summer of 1916, since which time they have lived in separate rooms in Mrs. King's lodging house in San Benito, Tex., and not as husband and wife. There were never any children of this marriage, although Mr. King has adult children by an earlier marriage, and there is no community property.

The lodging house was built on a lot in San Benito, deeded to Mrs. King as her separate estate. On August 5, 1916, appellant brought suit in the district court of Cameron county, being cause No. 3076, W. O. King v. Mrs. Nettie G. King, to recover an undivided nine-tenths of this lot and improvements as his separate property, and, in the alternative, to recover the whole as community property. The institution of this suit was the immediate cause of the separation of husband and wife. Mrs. King defended, claiming the property as her separate estate, and prayed for affirmative relief to quiet her title, and to establish her sole right to the rents accrued and to accrue. Pending the litigation, half of the rents and of the lodging house earnings were paid by her to Mr. King under order of the court. Final judgment was rendered April 9, 1919, in favor of Mrs. King, quieting her title to this property as her separate estate, but with an accounting for community moneys that had gone into the buildings, less the moneys so paid to Mr. King, resulting in a net charge of $500 in favor of Mr. King, which she subsequently paid off. This judgment also allowed Mr. King, rent free, the occupancy of one room, similar to that reserved by Mrs. King for her personal use, during the continuance of the marriage; the court thereby perpetuating the modus vivendi, but established in Mrs. King the right to the future rents and earnings of the rest of the property, as her separate estate, free of any right or claim of Mr. King thereto.

From this judgment Mr. King appealed to this court, which affirmed the judgment on February 4, 1920, and overruled Mr. King's motion for rehearing on March 10, 1920; and the Supreme Court refused a writ of error on December 22, 1920. See King v. King (Tex. Civ. App.) 218 S. W. 1093.

Mr. King's next step was taken on July 1, 1922, when he instituted suit in said district court, being cause No. 5147, W. O. King v. Mrs. Nettie G. King, to set aside the former judgment and to retry the matters in controversy therein, alleging that said judgment had been procured by the perjured testimony of his wife given on the former trial. The district court, on January 10, 1926, sustained the general demurrer and some of the special exceptions urged by Mrs. King to the amended petition filed by Mr. King on October 29, 1924; and, the plaintiff having declined to amend further, that court dismissed the suit. Again Mr. King appealed to this court, and this court affirmed the judgment of the court below. See King v. King, 279 S. W. 899.

All this time Mr. King continued to occupy his room, the parties living not as husband and wife, but separately, until Mrs. King brought this suit for divorce. From the date of the first judgment, Mrs. King has collected and used, in her own support and in part for the support of her husband, all the rents and fees earned from this lodging house, claiming them as hers alone under that judgment.

This case was tried by the court without a jury. The court made findings of fact at the request of defendant and, as they so fully cover the issues of law and fact, as shown from the record, we have adopted the same.

"That the defendant, W. O. King, and the plaintiff, Mrs. Nettie G. King, are husband and wife, and both of them have been, for 19 years last past, actual bona fide inhabitants of the state of Texas and residents of the county of Cameron, and that said defendant has been guilty of excesses, cruel treatment, and outrages toward the plaintiff, as complained of in her petition, of such a nature as to render their living together insupportable.

"That the marriage and marital relation heretofore existing as aforesaid between plaintiff and defendant be, and the same are hereby, dissolved, and that plaintiff be, and she is hereby, divorced from the defendant, by separation from the bonds of matrimony heretofore existing between them.

"That the cause of action set up by defendant by way of cross-action against the plaintiff, same being for the recovery from plaintiff of one-half of the net rents and revenues received by her from lot 1, block 31, original town of San Benito, in Cameron county, Tex., and the buildings and improvements thereon, was concluded and adjudicated against the defendant by the final judgment of a court of competent jurisdiction heretofore rendered in a former suit between the same persons who are the parties to this suit upon a trial upon the merits of said former suit, namely by the judgment of the district court of Cameron county, Tex., Twenty-Eighth judicial district, rendered on April 9, 1919, in a cause therein then pending, being cause No. 3076, entitled W. O. King v. Mrs. Nettie G. King, which judgment was affirmed upon appeal and is final and in full force and effect, and that the said judgment pleaded by the plaintiff, Mrs. Nettie G. King, in bar of said cross-action in her plea of res judicata is a full and complete bar to the defendant W. O. King's recovery of any part of such rents and revenues, the right to which was in issue in that suit and expressly adjudged therein by the judgment aforesaid.

"Wherefore it is ordered, adjudged, and decreed: that the defendant, W. O. King, take nothing by his said cross-action, and that of same the plaintiff, Mrs....