Moor v. Moor

• Court: Court of Appeals of Texas
• Writing for the Court: Neill
• Citation: 57 S.W. 992
• Parties: MOOR v. MOOR.
• Decision Date: 06 June 1900

57 S.W. 992 MOOR
v.
MOOR. Court of Civil Appeals of Texas. June 6, 1900.

Page 993

Appeal from district court, El Paso county; A. M. Walthall, Judge.

Action by Sarah P. Moor against Fitzgerald Moor to set aside an agreement and settlement of community property, and for partition. Judgment for plaintiff, and defendant appeals. Reversed in part.

Millard Patterson and C. N. Buckler, for appellant. T. A. Falvey and Waters Davis, for appellee.

NEILL, J.

In this case we find that the evidence is reasonably sufficient to sustain the conclusions of fact found by the trial court, and adopt them. They are as follows:

"Findings of Fact.

"First. That plaintiff and defendant were lawfully married in the year 1880 in the state of Texas.

"Second. That said marriage was dissolved by decree of divorce rendered by the district court of El Paso county, Texas, on the 3d day of October, 1899, in the case of Sarah P. Moor v. Fitzgerald Moor (No. ____), and that said decree was not appealed from, and is now a final judgment, and that in said decree of divorce neither the settlement and partition of the property rights between plaintiff and defendant, either separate or community, was an issue in said cause, and no decree was rendered in relation thereto.

"Third. That at the time said suit for divorce was instituted, and said decree of divorce rendered, the defendant had in his possession and under his control the following real and personal property, of the value set opposite each piece of property, to wit:

 Personal Property.
                Lee note for $6,732.50, int. two
                 years, at 10%, less credit of $100 $7,978 50
                Stanton note, $185, int. five years
                 at 10% ................................ 277 50
                Claim against Elephant Butte Dam
                 Co. for $18 ........................... 18 50
                Claim against party by name of
                 Roberts, $20 .......................... 20 00
                2 notes against one Hill, $200....Not collectible
                One note against one Sanders, $100 " "
                Account against Sanders, $11.65.. " "
                Note against one Boone, $30.............. " "
                Note against one McNew, $100............. $ 100 00
                Account against one Shelby, $25 ......... 25 00
                Note against one Gould, $25 ............. 25 00
                Scrip, $6 ............................... 6 00
                1/3 Coghlan note (balance of note between
                 $8,000 and $12,000) ................... 2,666 2/3
                Note with vendor's lien against
                 Roberts' house, $750 .................. 750 00
                ½ of 559 head of cattle .............. 3,348 00
                20 horses on Oliver Lee range ........... 100 00
                27 head of cattle near Midland, sold
                 for $500 .............................. 500 00
                12 or 15 cattle in Sacramento
                 Mountains ............................. 144 00
                6 or 8 horses on Oliver Lee range........ 120 00
                18 head of cattle sold to Newman
                 for $322 .............................. 322 00
                ½ 50 tons of hay at Tularosa, New
                 Mexico ................................ 250 00
                One water right at or near Tularosa,
                 New Mexico ............................ 250 00
                50 acres valley land near Las
                 Cruces, N. M........................... 250 00
                101 45/100 acres valley land in El
                 Paso county, near Brunswick station.... 400 00
                Undivided 1/3 lands and lots taken
                 on Coghlan debt at Tularosa, N.
                 M. .................................... 1,333 33½
                160 acres of land near Vinton, in
                 El Paso county, Texas ................. 1,120 00
                10 acres of land near San Diego,
                 Cal. .................................. 150 00
                4 or 5 near San Diego, Cal. (lots)....... 50 00
                2 lots near San Diego, Cal............... 100 00
                6 lots near San Diego, Cal............... 150 00
                95/100 acres near San Diego, Cal......... 125 00
                 (Said San Diego, Cal., property
                 being shown by deeds offered in
                 evidence.)
                Roberts land, as shown by deed,
                 given to secure $5,000 note.. No ev. as to value
                247½ acres in valley below El Paso,
                 in El Paso county...................... $ 247 00
                19x86 2/3 ft. of lot 35, block 6, Mills'
                 map (American Kitchen)................. 10,000 00
                Lot. 1, block 6, of Morehead's addition,
                 with house thereon..................... 500 00
                63x130 feet between Franklin
                 street and Railway Reservation......... 4,000 00
                Part of lots 51 and 52, block 9,
                 Campbell's addition to El Paso, 79
                 feet cor. San Antonio and Stanton
                 streets, in block 38, known as
                 "Newman Property" ..................... 23,700 00
                59 feet adjoining on Stanton street,
                 in said block, known as "Smith
                 Property" ............................. 5,900 00
                111 by 122 feet, part of what is
                 known as the "Bassett Property";
                 said 111 feet being on Overland
                 street; 149 feet adjoining
                 on Overland street by 120 feet,
                 known as "part of the Bassett
                 property"; said property to include
                 the south half of block 38.............. 28,775 00
                Also improvements on said block 38 8,800 00
                North 3 feet and 45 inches of lot
                 171, and all of lot 172, in block
                 36, Mills' map ......................... 4,500 00
                Lots 8, 9, and 10 in block 244,
                 Campbell's addition, deeded to
                 plaintiff .............................. 6,000 00
                Cash given plaintiff in settlement
                 contract, $3,600 ....................... 3,600 00
                

"Fourth. That all of said property, both real and personal, was at said time the common or community property of plaintiff and defendant.

"Fifth. That at the time of the institution of said divorce suit, and the decree of divorce, there were the following debts owed by said defendant to the following persons:

To Pittsburg man (secured by lien on
                 Newman property above) .............. $10,000
                To First National Bank, on note secured
                 by collateral ....................... 4,500
                H. S. Ball, note ...................... 2,000
                E. C. Roberts, note, as surety ........ 5,000
                

Page 994

E. C. Roberts note, as surety; one
                 other solvent surety being on same .. 750
                Numa Raymond note, with interest ...... 6,500
                McVey debt ............................ 500
                Taxes for year 1899.................... 1,200
                

"Sixth. That all of said debts are common or community debts, for which all of the community property of plaintiff and defendant is liable.

"Seventh. That plaintiff and defendant entered into an agreement to partition their community property, by which plaintiff received from defendant the sum of $3,600 in money, and a deed from defendant to lots 8, 9, and 10 in block 244, Campbell's addition to the city of El Paso, Texas, bearing date October 3, 1899; that said lots were at the time of said divorce worth the sum of $6,000 (to include improvements thereon); that defendant received from plaintiff a deed bearing date the 6th day of October, 1899, conveying to him all plaintiff's interest in all the residue or balance of the property belonging to said community estate, wherever situated.

"Eighth. That said agreement of partition between plaintiff and defendant of their said community property was entered into before said decree of divorce was rendered, while plaintiff and defendant were husband and wife, in contemplation of separation by divorce.

"Ninth. That the said agreement to partition said community property, and said deed from plaintiff to defendant bearing date October 6, 1899, and said deed from defendant to plaintiff bearing date October 3, 1899, are null and void.

"Tenth. That the deed to plaintiff was signed and acknowledged by defendant before said divorce was decreed, but was not delivered until after said decree, and that the deed executed by plaintiff to defendant was executed and delivered after said decree of divorce; that said $3,600 was paid to plaintiff after said decree of divorce,—having been left by defendant with attorneys, to be so paid, prior to said decree of divorce; that the execution and delivery of said deeds, and the payment of said money, were done in pursuance of the agreement made prior to said decree of divorce; that, after said divorce was had, there was no other or further agreement between plaintiff and defendant in reference to a partition of said property, and no new consideration for said deed and the payment of said money passed between the parties.

"Eleventh. That prior to said divorce, and at the time of said agreement to partition said community property, all of the community property belonging to plaintiff and defendant was in the possession of defendant, and was then and there of the value of $116,596; that plaintiff was at said time, and at the time of the execution of said agreement, ignorant of the amount, location, and value of the property belonging to the community estate of said plaintiff and defendant, and defendant did not inform plaintiff as to the same; that the defendant stated to plaintiff, and caused her to believe, that he had all of said property fixed so that the same could not be reached or obtained by her, and also falsely stated to plaintiff, and induced her to believe, that the amount of money and property received by her in said settlement was equal to one-half of the community property owned at said time by plaintiff and defendant.

"Twelfth. That plaintiff received no consideration from defendant for the excess of property deeded by her to defendant, and to which she was entitled, over and above the amount given to her by defendant.

"Thirteenth. That said division of said community property by the parties was not fair, equal, and equitable; that the amount and portion received by plaintiff was but a small part of the community property to which she was entitled."

This suit was brought by appellee against appellant on the 7th day of February, 1900. She alleged as a cause of action that on the 3d day of October, 1899, she and appellant were husband and wife, and that during their marriage they had accumulated a large community estate, consisting of real and personal property, described in her petition, and that on the day above mentioned she procured a divorce in the district court of El Paso county, Tex., annulling the bonds of matrimony theretofore existing between herself and appellant; that on the 3d day of October, 1899, prior to granting the divorce, and while she and...