Markum v. Markum

• Decision Date: 14 May 1925
• Docket Number: (No. 3059.)
• Citation: 273 S.W. 296
• Parties: MARKUM v. MARKUM.
• Court: Texas Court of Appeals

Page 296

273 S.W. 296

MARKUM v. MARKUM.

(No. 3059.)

Court of Civil Appeals of Texas. Texarkana.

May 14, 1925.

Rehearing Denied May 21, 1925.

Appeal from District Court, Dallas County; Towne Young, Judge.

Suit for divorce by Mrs. I. L. Markum against J. F. Markum, with cross-action by defendant seeking interest in land. From the decree, plaintiff appeals. Reformed and affirmed.

In this suit, commenced by appellant by a petition filed May 8, 1916, each of the parties sought a divorce from the other, and a partition of property belonging to the community estate between them, which included, appellee asserted, a lot and improvements thereon on Harwood street in Dallas, which appellant claimed she owned in her own separate right, and a lot and improvements thereon on Park avenue in said city, and certain personal property. A trial of the suit resulted in a judgment (rendered September 28, 1917) granting each of the parties a divorce, and determining that the Harwood street property, as well as the other property described in the pleadings of the parties, belonged to said community estate. On an appeal prosecuted by the appellant here, the judgment was reversed so far as it determined that said Harwood street lot belonged to said community estate, and the cause was remanded to the district court for a new trial on that issue. In all other respects the judgment was affirmed. See Markum v. Markum (Tex. Civ. App.) 210 S. W. 835. The pleadings of the parties were amended before the trial was had, resulting in the judgment from which this appeal is prosecuted. The issue made by the amended pleadings were as to whether the Harwood street property belonged to appellant alone or to the community estate of the marriage between her and appellee, and as to the right of appellee to recover of appellant one-half the rental value of said Harwood street property and said Park avenue property from the time intervening between the date of the judgment granting the divorce and the time of the last trial, and the right of appellant to recover against appellee on account of taxes assessed against the property paid by her, and for repairs thereon, etc. It appeared without dispute, in the testimony heard at the trial that the Harwood street property was conveyed by Alice and Arnold Arons to appellant, by a deed dated February 20, 1899, and that the deed contained a recital that the conveyance to appellant was for her separate use and benefit. Special issues — more than 40 of them — were submitted by the court to the jury, and, on findings made, the court rendered judgment determining that the Harwood street property belonged to the community estate of the marriage between the parties, and in appellee's favor against appellant for $1,547.97, as the amount the former was entitled to recover of the latter as the rental value of his one-half undivided interest in said Harwood street property and said Park avenue property.

J. J. Fagan, Lewis T. Carpenter, and H. P. Kucera, all of Dallas, for appellant.

Beall, Worsham, Rollins, Burford & Ryburn, of Dallas, for appellee.

WILLSON, C. J. (after stating the facts as above).

The recital in the deed (dated February 20, 1899, and duly filed for record March 9, 1899) from the Arons, that the conveyance of the Harwood street property to appellant was "for her separate use and benefit" overcame the presumption which, without it, would be indulged that the title to the property passed to the community estate between appellant and appellee, and established, prima facie, that that property instead became a part of appellant's separate estate. McCutchen v. Purinton, 84 Tex. 603, 19 S. W. 710; Kahn v. Kahn, 94 Tex. 114, 58 S. W. 825. Whether appellee discharged the burden resting upon him to overcome the prima facie case so made in appellant's favor is a question on this appeal. Appellee alleged that the property was paid for with funds belonging to said community estate, and that the recital in question was (quoted from his answer) "the result of fraud and deceit practiced by the plaintiff upon * * * this defendant, and that, but for such fraud and deceit on the part of the plaintiff, said deed would not have been drawn so as to vest the title in the plaintiff for her sole and separate estate, and so as to deprive this defendant of his community interest therein."

And he alleged, further, that he "had no knowledge of the recitals in said deed making the said lot the separate property of plaintiff," and "in good faith believed that the said lot was community property and, so believing, paid the entire consideration for said lot out of community funds."

The specific "fraud and deceit" charged against appellant consisted, it seems, of the fact, as alleged, that appellant, without appellee's knowledge or consent, induced one Bolanz to have one Murphy (who wrote the deed) to include the recital in question in it by "falsely and fraudulently" representing that he (appellee) had agreed the deed should be so drawn.

On special issues submitted to them, the jury found that the property was paid for with community funds, as charged by appellee, and that appellant falsely and fraudulently made the representation specified, as was further charged by him. Those findings, when considered alone, we think warranted the judgment rendered in appellee's favor, so far as it was that the property in controversy belonged to the community estate between him and appellant. Kearse v. Kearse (Tex. Civ. App.) 262 S. W. 561; Strickland v. Baugh (Tex. Civ. App.) 169 S. W. 181. In the Kearse Case, where the deed in question contained a recital like the one here, the court said:

"To permit a third party, acting either alone or at the instance of one of the spouses, by the use of apt language, such as is contained in the conveyance under consideration, to change the nature of property from community to that of the separate property of one of the spouses, would sanction the commission of a fraud. To accomplish such a metamorphosis, the spouse whose interest will be affected thereby must assent in some way known to the law."

As we understand appellant, she does not contend to the contrary. Her contention is, it seems, that the findings were not warranted by the testimony. But we think they were. While she testified as a witness that money belonging to her separate estate was used to pay for the property, and that appellee was present and acquiesced in instructions she gave Bolanz to have the deed written as it was written by Murphy, appellee as a witness testified to the contrary — that the entire purchase price of the property was paid out of community funds of the marriage between him and appellant, and that he knew nothing about the proposition to have the deed so written, or that it was so written, until the trial was had resulting in the judgment granting him and appellant a divorce from each other.

It follows we think the judgment was not erroneous so far as it was in appellee's favor for an undivided one-half interest in the Harwood street property, unless appellant's contention that his right to sue therefor was barred by the statute of limitations should have been sustained. Appellee's cross-action, according to his amended answer, was to recover an undivided one-half interest in the property, on the theory that it belonged to the community estate of the marriage between him and appellant. As against such a recovery by appellee, appellant set up (it is assumed, for there is doubt as to the sufficiency of her pleadings to do so) ...