Lewis v. Lewis, 13859.

• Decision Date: 27 January 1939
• Docket Number: No. 13859.,13859.
• Parties: LEWIS v. LEWIS.
• Court: Texas Court of Appeals

125 S.W.2d 375

LEWIS v. LEWIS.

No. 13859.

Court of Civil Appeals of Texas. Fort Worth.

January 27, 1939.

Rehearing Denied February 24, 1939.

Appeal from District Court, Wise County; J. E. Carter, Judge.

Suit by Mrs. Pearl Lewis against G. W. Lewis and another to cancel deeds and a portion of a judgment. From a judgment for the plaintiff, the named defendant appeals.

Affirmed.

T. R. Boone and Kearby Peery, both of Wichita Falls, for appellant only on motion for rehearing.

C. T. Gettys and M. W. Burch, both of Decatur, for appellee.

SPEER, Justice.

This suit was instituted on November 15, 1937, by Mrs. Pearl Lewis, against G. W. Lewis and his then wife, Amy Lewis, to cancel deeds and a portion of a judgment rendered by the District Court of Wise County, Texas, on February 17, 1930, styled Pearl Lewis v. G. W. Lewis.

The plaintiff and defendant, G. W. Lewis, will carry the same designation here as in the trial court; the defendant, Mrs. Amy Lewis, being only a nominal party, will require no further mention.

From plaintiff's petition it is made to appear that she and defendant were husband and wife for many years prior to February 17, 1930, at which time they were divorced; there were born to them seven children, six of whom were minors, the other being an adult but of feeble mind, and by the decree the custody of all children was awarded to her; that by the judgment rendered all community property was divided between the parties. Plaintiff received certain personal property and a house and lots in Decatur, worth $2,500, with an indebtedness against it of $2,000, and 225½ acres of farm lands in Wise County, worth much less than the $6,000 secured by a lien on the land, besides accumulated taxes against it. The defendant received certain personal property and 170 acres of land in Wichita County, Texas, valuable for farming purposes, and upon which were several producing oil wells, against which there was no incumbrance, except a claim for taxes by a Water Improvement District, which said claim was not valid and binding and was eventually canceled by the District. Defendant was to pay to plaintiff $20 per month for support of the children. Allegations were made that prior to said judgment and decree, in contemplation of final separation and divorce, the parties entered into a purported agreement that the property should be so divided, and on August 7, 1929, executed their respective deeds to each other, conveying the lands, and that the subsequent decree of the court was based upon said agreement and conveyances.

It was alleged that at the time of said agreement, conveyances and decree, and at all times prior thereto, and continuously until less than a year prior to the institution of the suit, plaintiff was ignorant of the values of said property and the indebtednesses against each, but that defendant had managed all of said transactions and knew the true conditions thereof, and deceived plaintiff in each of said matters by false and fraudulent representations to her about the same; she believed and relied upon defendant's said representations and acted upon them. That at the times of said agreement and judgment, the Wichita land had several producing oil wells on it, and defendant was receiving regularly each month royalty payments therefrom, but represented to plaintiff that little or no royalties were being paid since the production was negligible; the lien holder foreclosed and sold the Wise County land within a few months after the conveyances and judgment were made and entered and she received nothing from the transaction. She further alleged that defendant paid the monthly installments for the support of the children for a year and quit. Her allegations of fraud practiced by defendant are detailed. Her lack of knowledge of the true facts, and her inability to know the truth and lack of negligence in learning that she had been deceived, prior to a few months before this suit was filed, are all pleaded fully and are sufficient as against the eighteen special exceptions urged by defendant and overruled by the court. She tendered into court all property received by her which she had on hand, and offered to do equity, and prayed for a cancellation of the deeds and judgment, by which the property had been divided, for a decree declaring the Decatur house and lots and the Wichita lands community property between them, that she recover her share of the use and benefits received by defendant for the lands in his possession, including its value for farming purposes and oil royalties and for moneys expended by her in support of the children.

Defendant answered with general denial and by special pleas of the validity of the agreed division of the property by the deeds and the decree of the court; denials of fraud and deceit upon his part, and that since plaintiff did not offer to return the farm lands in Wise County the court was without jurisdiction to balance equities between the parties, and a plea of limitation as against plaintiff's attack on the judgment of February 17, 1930, and for general and special relief.

The case was tried to a jury upon special issues determinative of the things set out in the pleadings. The verdict was in all things favorable to plaintiff and the court entered judgment upon said verdict, to the effect that the Decatur property was at that time more valuable than when received by plaintiff; that the farm in Wise County was worth less when she received it than the incumbrances then against it, and there was no equity therein received by her. That at the time of the agreed division between the parties and the rendition of judgment thereon in February, 1930, the Wichita lands were worth $10,200. The court found the agreed partition, the conveyances and judgment thereon were procured and induced by the frauds of defendant. There is a further finding by the court that the benefits received by defendant from the Wichita County lands were so much and the reasonable amount expended by plaintiff for the support of the children, over and above the amount contributed by defendant, was stated; there was a finding that the equities in personal property divided were equal. The deeds of conveyance and that part of the judgment of February 17, 1930, dividing the lands, were canceled and held for naught; the Decatur property and the Wichita lands were declared to be jointly owned by plaintiff and defendant and a money judgment entered in favor of plaintiff against defendant for $6,761.61. From this judgment defendant has appealed.

No briefs have been tendered or filed by defendant. Several days after time had expired for filing briefs, defendant filed his motion to postpone submission of the case, to enable him to prepare and file briefs. The motion was overruled by us, because no good cause was shown. Plaintiff resisted that motion and asked that the cause be affirmed on the record.

Because defendant has filed an instrument in this court calling our attention to what he terms fundamental errors in the record, we have thought it proper to make the foregoing full statement of the points in controversy. Defendant contends the trial court committed fundamental error in rendering judgment as he did and in not charging plaintiff with rentals for the use of the Decatur residence property, and further because the court divided the property that was still on hand and did not require an accounting of the Wise County lands received by plaintiff.

We see no error in the court's findings pointed out by defendant, which could be considered as fundamental. The fact that no award was made concerning the use of the Decatur property is accounted for by the court in a finding that the property was at the time of the trial more valuable by "several hundred dollars" than at the time plaintiff received it. Whether this is because of improvements placed thereon by her out of separate funds, we are not at liberty to say. Such condition would amount to an accounting on her part for its use. We must presume that the facts before the court supported the judgment rendered. Article 2190, R.C.S. In this connection the court further found that defendant had received a new automobile in part payment for bonuses for leases on the Wichita County lands, which item was not charged against him, but was considered along with the value of the Decatur property, and concluded, "but in balancing all possible equities it is considered that such charges may properly be and are eliminated thereby." It thus appears that such equities as the court considered the parties were entitled to were by him so adjusted.

Relating to an accounting by plaintiff for the Wise County farm lands, it is clear from the judgment the court did not ignore that item. The judgment recites concerning it this: "It appearing that the 225½ acres of land in Wise County has been taken out by foreclosure of the incumbrance existing against the same at the time of such former division, which incumbrance in the sum of $6,000.00 had been placed thereon by said G. W. Lewis, it is considered that no order need or can be made regarding same."

Because of the suggestions made by defendant of fundamental error, we have carefully studied the whole transcript of over two hundred pages, to ascertain if any are shown. We find none, and it therefore becomes our duty to affirm the judgment of the trial court. See 3 Tex.Jur., p. 815, secs. 574 and 575; arts. 1846 and 1848, Vernon's Ann.Civ.St.; Rules for Courts of Civil Appeals No. 38; Hinckley-Tandy Leather Co. v. Hazlewood, Tex.Civ.App., 45 S.W.2d 1103; Harrell v. City of Denton, Tex.Civ.App., 116 S.W.2d 423; Graves v. Conn. Gen. Life Ins. Co., Tex.Civ.App., 104 S.W.2d 121.

The judgment of the trial court is affirmed as to all parties and the sureties on defendant's supersedeas appeal...