McDonald v. Stevenson

• Decision Date: 12 November 1922
• Docket Number: (No. 818.)<SMALL><SUP>*</SUP></SMALL&gt
• Parties: McDONALD et al. v. STEVENSON et ux.
• Court: Texas Court of Appeals

245 S.W. 777

McDONALD et al. v. STEVENSON et ux.

(No. 818.)^*

Court of Civil Appeals of Texas. Beaumont.

November 12, 1922.

Rehearing Denied November 22, 1922.

Appeal from District Court, Harris County; Chas. E. Ashe, Judge.

Suit by Marie McDonald and others against J. R. Stevenson and wife. From a judgment for defendants, plaintiffs appeal. Affirmed.

W. J. Howard, of Houston, for appellants.

Campbell, Myer & Freeman, of Houston, for appellees.

O'QUINN, J.

Appellants sued appellees for partition of lots 7 and 8 in block 19, and lot 5 in block 76, in the Noble addition to the city of Houston, Tex., and lot 5 in block 25 in the Chapman Second addition to the city of Houston, alleging that they were the owners of a one-half interest in said property, and that appellees were the owners of the other half.

Appellees answered by general denial, plea of not guilty, and specially pleaded the three and five years' statutes of limitation. They also pleaded improvements in good faith. By cross-action, appellees, in the form of trespass to try title, sued for the entire premises.

Appellants, by supplemental petition, answered by plea of not guilty, and that they had all the while been tenants in common with appellees.

The case was tried before the court without a jury, resulting in a judgment in favor of appellees for all the premises, from which appellants appeal.

The court filed the following findings of fact:

"Findings of Fact.

"(1) James McDonald and wife, Amelia McDonald, were for many years husband and wife, and continued to live together as such from the time of their marriage until the death of James McDonald, in the year 1905.

"(2) During the period of their marriage the said James McDonald and wife, Amelia McDonald, acquired all the property hereinafter referred to and described. All of said property was acquired under such circumstances that same became the community property of said James McDonald and Amelia McDonald.

"(3) James McDonald was drinking heavily and he and Mrs. Amelia McDonald decided to divide their community property. Accordingly, on or about October 25, 1900, they both signed and acknowledged (the acknowledgment of Mrs. McDonald being in the form and manner provided by statute for married women) an instrument in the form of a deed, conveying to J. Burgheim all of their community property, as follows:

"`Lots 5 and 6 in block No. 76, in the Noble addition to the city of Houston, Harris county, Tex.; also lots Nos. 7 and 8, in block No. 19, in said Noble's addition to said city; also lots Nos. 7 and 8, in block No. 19, in Allen's addition to said city; also lot No. 5, in block No. 24, in Chapman's Second addition to the city of Houston; and all other real estate of any description whatsoever owned by either of the parties hereto, and situated in said city, together with all improvements thereon.'

"J. Burgheim (at the same time) executed and acknowledged two (2) instruments, both dated on the same date as the above instruments, one being in the form of a deed to James McDonald, conveying him as his separate property and estate the following property:

"`Lots Nos. 7 and 8, in block No. 19; and lot No. 5, in block No. 76, in Noble's addition to said city of Houston; and lot No. 5, in block No. 25, of Chapman's Second addition to the city of Houston'— being the property in controversy in this suit.

"The other instrument was in the form of a deed to Mrs. Amelia McDonald, conveying to her as her separate property and estate the following property:

"`Lot No. 6, in block No. 76, of the Noble addition to said city of Houston; lots 7 and 8, in block No. 19, in Allen's addition to the city of Houston, and all other real estate of any description whatsoever conveyed to said Burgheim by James McDonald and his wife, said Amelia McDonald, by deed of even date herewith, save and except such portions and parcels heretofore conveyed by me to the said James McDonald' — and being the remaining portion of the community property of Mr. and Mrs. McDonald. All three of these instruments were filed for record with the county clerk of Harris county, Tex. The value of the property described in each of the two instruments executed by Burgheim was approximately the same. There was no consideration for any of the instruments except the attempted division of the property.

"(4) The occasion for the attempted division of community property was the fact that Mr. McDonald had been drinking heavily and his wife feared that he would squander or dissipate all of their property, and they would be left without anything to live on in their old age. A partition by which one-half of the property would be set aside to each of them as separate property was therefore determined upon at the suggestion of Mrs. McDonald and was agreed to by Mr. McDonald, and the transaction set out in section 3 of these findings of fact was an effort to carry into effect the agreement to partition the community property between James McDonald and his wife, Amelia McDonald.

"(5) It does not appear that any part of the property undertaken to be partitioned was in fact dissipated or squandered. All of the property attempted to be set aside to James McDonald was on hand at the time of his death, and is involved in this present suit.

"(6) For the years intervening between the attempted partition and the death of James McDonald, his wife asserted the property for taxation for both of them, making two assessments each year, one in the name of her husband, which was the property described in the instrument from Burgheim to James McDonald, and the other assessment in her own name, which was the property in the instrument from Burgheim to her.

"(7) James McDonald died intestate June 2, 1905, leaving no child or children of their descendants or mother or father surviving him, but being survived by his wife, Mrs. Amelia McDonald.

"(8) The plaintiffs in this suit are the collateral kindred of James McDonald and are all of the legal heirs of James McDonald, deceased. They being all the descendants of his brothers and sisters, who are all deceased.

"(9) Mrs. Amelia McDonald died June 13, 1915, leaving a last will and testament, which was duly probated, by which all of her property was devised and bequeathed to Mrs. Mary Stevenson, wife of J. R. Stevenson, defendant herein. Mrs. Stevenson has all of the title and interest of Mrs. Amelia McDonald in all of the property above described.

"(10) Mrs. McDonald after the death of James McDonald on June 2, 1905, was and remained in continuous possession of the property in controversy, using and enjoying the same and claiming it all as her own up until April 30, 1913, when she conveyed one lot to the defendant Mrs. Stevenson as hereinafter stated, and she, the said Mrs. McDonald, remained in possession of the remainder of the property in like manner and under like claim until her death on June 13, 1915, and thereafter the defendant Mrs. Stevenson was in continuous possession of all the property, using and enjoying same and claiming it all as her own up until the time of the filing of this suit on September 19, 1917, but no notice either on the part of said Mrs. McDonald or the defendant Mrs. Stevenson that they were claiming all the property was given the plaintiffs or any of them, who during such time were nonresidents of Texas. It does appear, however, that one of the plaintiffs, John Cavanaugh, was in attendance at the funeral of said James McDonald, in June, 1905, and by deed dated April 30, 1913, said Mrs. McDonald conveyed to the defendant Mrs. Stevenson one lot of the premises in controversy, to wit, lot No. 5, in block No. 76, of the Noble addition. This deed was duly filed in the office of the county clerk of Harris county, Tex., and duly recorded in the deed records of Harris county, Tex., on May 8, 1913. The defendant Mrs. Stevenson after said lot was so conveyed to her, paid all taxes on same as they accrued, and was in continuous possession of same, using and enjoying and claiming it as her own under said deed until this suit for the recovery of one-half of the property in controversy was filed on September 19, 1917.

"(11) It appears from the evidence that subsequent to June 13, 1915, and after the death of said Mrs. Amelia McDonald, which occurred on that date, the defendants collected certain amounts as rent upon said property, and that they paid out certain sums for taxes on said property and for repairs and improvements thereon, and evidence was also introduced by defendants of improvements in good faith, but in view of my conclusions regarding the law applicable to the facts, I do not deem it material or necessary to determine the amount of money collected and disbursed by defendants, or to go into any matter relating to any accounting, or into the matter relating to improvements in good faith."

It is agreed by the parties that the only question in the case is whether the property in question was, at the time of the death of James McDonald, his separate property, or whether, notwithstanding the transaction with and through Burgheim, it remained the community property of said McDonald and wife. If it was his separate property, the appellants are the owners of one-half of it, and the judgment of the court below is wrong. If, on the other hand, it was community property, the appellees are the owners of all of it, and the judgment below is right.

The steady and unbroken policy of the law of Texas has been to classify property according to the facts surrounding its acquisition, thus determining the interest...