Martin v. Barnum

• Decision Date: 01 May 1926
• Docket Number: (No. 11562.)
• Citation: 286 S.W. 550
• Parties: MARTIN et al. v. BARNUM et al.
• Court: Texas Court of Appeals

Page 550

286 S.W. 550

MARTIN et al. v. BARNUM et al.

(No. 11562.)

Court of Civil Appeals of Texas. Fort Worth.

May 1, 1926.

Appeal from District Court, Tarrant County; R. E. L. Roy, Judge.

Action by W. E. Barnum and others against R. M. Martin and another, wherein Mrs. Varanda Barnum intervened. Judgment for plaintiffs, and intervener and defendants appeal. Judgment reformed, and as reformed, affirmed.

See, also, 278 S. W. 323.

Wm. R. Booth, and W. R. Parker, both of Fort Worth, for appellants.

G. R. Lipscomb and Theobald Koenig, both of Fort Worth, for appellees.

BUCK, J.

W. E. Barnum and his children, George, Arthur, Nellie, and Birdie Barnum, the last two by their father as next friend, sued R. M. Martin and J. P. Scott in form of trespass to try title to lot No. 3, in block No. 159, of the North Fort Worth addition to the city of Fort Worth. Mrs. Varanda Barnum, the former wife of W. E. Barnum and the mother of the children, intervened. Martin and Scott answered by a plea of not guilty, by a general demurrer and a general denial, and specially pleaded that Martin had purchased the lot from Varanda Barnum in October, 1921, and that she had given a general warranty deed; that he had gone into possession of said premises immediately, and had held peaceable, adverse, and continuous possession of said property since said time; that he had made valuable improvements on said property and had paid the taxes thereon for 1921, 1922, 1923, and 1924. It was further pleaded that J. P. Scott was the mortgagee in a mortgage executed by defendant Martin.

Defendants further pleaded, by way of supplemental petition, that the deed under which plaintiffs claimed title was null and void, because at the time the same was executed W. E. Barnum had no right, title, or interest in and to said property which he could convey, and because the deed under which plaintiffs claimed is an effort to deprive W. E. Barnum's wife of her right, title, and interest in her homestead, without her consent or joinder.

The evidence shows, as found by the trial court in his findings of fact, that on February 15, 1921, Mrs. Willie A. Barry, a widow, conveyed the premises to W. E. Barnum; that, at the time of the conveyance, W. E. Barnum and Varanda Barnum were husband and wife and that the property was owned, used, and occupied by them as their community homestead; that Varanda Barnum filed suit for divorce in the Seventeenth district court of Tarrant county on March 21, 1921, in which cause of action the plaintiff sought judgment for divorce, custody of the minor children, partition of the community property, etc.; that W. E. Barnum, on March 25, 1921, by his certain quitclaim deed of that date, conveyed to Varanda Barnum and their children, George, Mabel, Arthur, Nellie, and Birdie Barnum, the undivided one-half interest owned by said W. E. Barnum in said homestead; that said deed was delivered to Varanda Barnum, who accepted the same on March 25th and continuously kept said deed in her possession from said date of acceptance, and had recorded the same July 8, 1921; that at said time Mabel and George Barnum were over the age of 21 years, both single and residing with their mother, and that the other three children were minors; that in the divorce proceedings the court rendered judgment dissolving the marriage relation between W. E. Barnum and Varanda Barnum, and decreeing and adjudging the title of lot No. 3, block 159, in the town of North Fort Worth to Varanda Barnum; that the judge of the court in which the divorce was granted was unaware at the time he rendered the judgment, awarding the title to the property to Mrs. Barnum, that a deed had been executed by W. E. Barnum to his wife and children; that Varanda Barnum, as a widow, by her general warranty deed, dated October 8, 1921, conveyed said lot to R. W. Martin and son, R. M. Martin; that the Martins gave one certain promissory note in the sum of $800, payable to the order of J. P. Scott three years after date at 8 per cent. interest, payable semi-annually, and that said Scott owned said note at the time of the trial; that the deed from Varanda Barnum to the Martins had been recorded; that R. W. Martin and wife, Lavenia Martin, conveyed, by their certain warranty deed, dated December 20, 1923, and duly recorded, their one-half interest in said lot to their son, R. M. Martin, and that, in consideration of said conveyance, among other things, was the assumption by said grantee of the $800 vendor's lien note. The court further found that $457.70 of revenue had been collected from said lot since they had purchased it, and they had spent in improvements thereon $365.19, leaving a balance on hand of $92.51, to the credit of the owners of said property. The court further found that Mabel Barnum, a single woman, who had never been married, died intestate in Tarrant county "on the ______ day of ______, A. D. 19__," and left surviving her as her sole and only heirs at law, W. E. Barnum, her father, and Varanda Barnum, her mother.

The court rendered judgment for plaintiffs and intervener against R. M. Martin and J. P. Scott for the one-half undivided interest in the property sought to be conveyed by the deed from W. E. Barnum to his wife and children, a one-twelfth undivided interest each to George, Arthur, Nellie, and Birdie Barnum, and to W. E. Barnum and Varanda Barnum each an undivided one twenty-fourth interest, the portion formerly owned by Mabel Barnum, deceased, and descended from her to her father and mother. The judgment also awards the different parties the due proportionate part of the $92.51, found by the court to be the difference between the expenditures on the property and the income therefrom. From this judgment the defendants have appealed.

Opinion.

The principal question to be determined on this appeal is as to whether the deed from W. E. Barnum to his wife and children, without the joinder of his wife, divested him of any interest in the land, and conveyed title to the grantees. Our state Constitution, art. 16, § 50, provides:

"The homestead of a family shall be, and is hereby, protected from forced sale, for the payment of all debts except for the purchase money thereof, or a part of such purchase money, the taxes due thereon, or for work and material used in constructing improvements thereon, and in this last case only when the work and material are contracted for in writing with the consent of the wife given in the same manner as is required in making a sale and conveyance of the homestead; nor shall the owner, if a married man, sell the homestead without the consent of the wife,...