Manning v. Benham

• Decision Date: 21 June 1962
• Docket Number: No. 13917,13917
• Citation: 359 S.W.2d 927
• Parties: Julie Arita Benham MANNING et vir, Appellants, v. Charles E. BENHAM, Appellee.
• Court: Texas Court of Appeals

Page 927

359 S.W.2d 927

Julie Arita Benham MANNING et vir, Appellants, v. Charles E. BENHAM, Appellee.

No. 13917.

Court of Civil Appeals of Texas, Houston.

June 21, 1962.

Rehearing Denied Denied Sept. 13, 1962.

Mann, fisher & Castillon, Sam R. Fisher, Laredo, for appellants.

Juanita P. Keen, Bettye J. Lambert, Houston, for appellee.

COLEMAN, Justice.

This is an action brought by appellee, Charles E. Benham, against his former wife, Julie Arita Gary Benham Manning, and her husband, Hugh Manning, for an adjustment of equities, by way of contribution, reimbursement or accounting, arising from properties purchased, and debts contracted, during the marriage of appellant and appellee, which were not settled by the decree of divorce. After a trial to the court without a jury, appellee was awarded a judgment in the amount of $8,456.28, and appellant has appealed.

The controversy revolves around certain property, which for convenience will be designated Houston property, Kenner lots, and Compromise Street house. The Houston property was owned by appellant prior to her marriage to appellee on August 31, 1946. On November 25, 1947, the existing mortgage on the property was increased, and both appellee and appellant executed a note in the sum of $11,500.00 and a mortgage on appellant's separate property. The sum of $7,000.00 was borrowed thereby for the community funds. After the marriage was dissolved by divorce, this note was paid in full and appellee contributed to the payment thereof the sum of $7,014.49. In order to pay the community portion of the obligation, including interest, the sum of $7,751.16 was required. It thus appears that appellee contributed the sum of $3,238.91, more than one-half of the community obligation.

The Kenner lots were purchased during the marriage for cash. Appellant contended that they were paid for by her with her separate funds. She produced checks signed 'Mrs. C. E. Benham, Special Account' for the greater portion of the consideration. Appellee did not testify directly that the funds used to pay for these lots were community funds, but he did testify generally to the effect that he and appellant chose and bought the lots as a site for a future home. The funds with which the 'Mrs. C. E. Benham, Special Account' was established were not traced other than through the testimony of appellant that it was her personal money and that it was money she had earned. Appellant testified to the sale of certain separately owned properties some years previously, but did not trace any of the proceeds into this bank account. She testified that she had several bank accounts under different names. During the marriage and prior thereto she had income from business ventures with her brother and from rentals from her separately owned property. Appellee testified that prior to and at the time of the purchases he was employed at a salary of $650.00 per month plus expenses, and that his wife managed the family finances. The deed to the property was taken in their names jointly. No proof of the Louisiana community property law was made. The trial court found that the property was community property and his finding is properly supported by competent testimony.

The Kenner lots were sold by appellant acting for herself and as attorney in fact for appellee for the net sum of $4,400.00. The trial court found that the power of attorney authorizing the sale was executed by appellee by reason of representations made by appellant that she would apply the proceeds to reduce the indebtedness on the Compromise Street house. Appellant collected the purchase price, but did not apply the proceeds to debt reduction.

The testimony concerning the purchase of the Compromise Street house is very similar to that concerning the Kenner lots and will not be repeated. The trial court found that it was purchased as community property, and such finding is supported by competent testimony and is not against the great weight and preponderance of the evidence. This property was jointly owned by appellant and appellee at the time of trial and no partition was requested or decreed. The trial court found on sufficient evidence that on the date of the divorce there was indebtedness secured by a lien on the property in the sum of $4,365.99, and at the time of trial a principal balance of $2,291.72. He further found that there was paid on this loan from the date of the divorce to the date of trial in principal and interest the sum of $5,588.91, and that of this sum appellee paid a total of $3,411.82, which was $617.37 more than one-half.

Appellant collected in rentals on the Compromise Street house, from the date of the divorce to the date of the trial, the sum of $5,350.00, and paid for the maintenance and preservation of the property the sum of $350.00. These facts were incorporated in the findings of the court and are supported by the evidence and not so contrary thereto as to be manifestly incorrect and unjust.

When this case proceeded to trial, appellant was a single woman. A take nothing judgment was rendered in favor of Hugh Manning, and no appeal has been taken from this part of the judgment.

Appellant contends that the court erred in allowing appellee recovery for any money paid to retire the indebtedness on the Houston property or the Compromise Street house since the payments were voluntarily made for the purpose of retiring appellee's own indebtedness and protecting his credit rating. As between appellee and the mortgagees, appellee clearly was liable for the entire debt. It is also well settled that the mortgagees would have been unable to enforce collection of the debts from appellant except by way of mortgage foreclosure. Poe v. Hall, 241 S.W. 708, Tex.Civ.App.; Giles v. First National Bank of Brownfield, 257 S.W.2d 945, Tex.Civ.App. At the time judgment was rendered granting appellant her divorce from appelled, the court could have required appellant, as between the parties, to assume the payment of a reasonable part of the community indebtedness in connection with the partition of the community estate. Hughes v. Hughes, 259 S.W. 180, Tex.Civ.App.; Mangum v. Mangum, 184 S.W.2d 338, Tex.Civ.App. Since the community property was not divided by the divorce decree, title vested in the parties at the date of the divorce as tenants in common or joint owners. McDaniel v. Thompson, 195 S.W.2d 202, Tex.Civ.App., error ref.; Ex parte Williams, 160 Tex. 314, 330 S.W.2d 605.

It is well settled that a joint owner of real estate, who has discharged a debt constituting a lien on the jointly held property, can recover contribution from the other owners. McKelroy v. Hamilton, 130 S.W.2d 1114, Tex.Civ.App. We think this rule of law applicable to the payments made on the Compromise Street house.

The parties were not joint owners of the Houston property. Appellant's separate property was pledged as security for the payment of a community debt. The general rule applicable, as stated in McKelroy v. Hamilton, supra, is:

'The rule in equity is that one who has been compelled to pay or satisfy the whole or to bear more than his just share of a common burden or obligation on which several persons are equally liable or for which their jointly owned property is liable, is entitled to contribution against the others to obtain from them payment for their respective shares.'

Appellant and appellee are not equally liable on this note. Community debts are the primary obligation of the husband, who is manager of the community estate. 30 Tex.Jur.2d, Husband and Wife, Sec. 4; Art. 4619, Vernon's Ann.Civ.St.

In Norris v. Vaughan, 152 Tex. 491, 260 S.W.2d 676, the Supreme Court of Texas held:

'The final problem to be considered is the $10,971 reimbursement awarded by the trial court for separate funds expended for community living expenses. It is fundamental that the husband is obligated to furnish support for the community living and if no community funds are available he should utilize his separate funds. Callahan v. Patterson, 4 Tex. 61; Coggin v. Coggin, Tex.Civ.App., 204 S.W.2d 47. It is his duty to provide for the community and in this instance he chose to expend a portion of his separate estate so that the community standard of living could be as at was. Separate funds spent for community living in such a manner should be deemed a gift to the community for its well-being and use. Allowing a right of reimbursement at a later date would be inconsistent with the fundamental concept that a man...