Morgan v. Moynahan
| Decision Date | 19 September 1949 |
| Docket Number | Civ. No. 5147. |
| Parties | MORGAN et al. v. MOYNAHAN. |
| Court | U.S. District Court — Southern District of Texas |
Spiner & Pritchard (Chas. B. Spiner), of Houston, Texas, for plaintiffs.
Brian S. Odem, U. S. Atty., and William R. Eckhardt III, Asst. U. S. Atty., of Houston, Texas, for defendant.
This suit is by the plaintiff, Mrs. Chloe Potter Morgan (joined pro forma by her husband, Claude F. Morgan), against a United States Deputy Collector of Internal Revenue, to restrain and enjoin the sale of the homestead of herself and husband, Claude F. Morgan, situated in the City of Houston, in this District and Division, for income taxes assessed against and owing by her husband to the United States of America for the years 1944, 1947, and 1948. On the date set for the hearing of plaintiffs' Petition for Preliminary Injunction, it was agreed that the case should be heard and this is a hearing, on the merits.
The facts are substantially as follows:
(a) It is undisputed that such taxes were duly assessed against and are owing by the husband, Claude F. Morgan, to the United States, and that all steps have been taken to fix and constitute same a lien against said Claude F. Morgan's interest in such property.
It also appears that the defendant, Maurice C. Moynahan, Deputy Collector, levied upon the property in question as the property of Claude F. Morgan, and proposes to offer same for sale.1
(b) It is shown that Mr. and Mrs. Morgan were married December 26, 1945, and that the property in question was purchased by them on the 8th day of July, 1947. The Deed of Conveyance was to both of them. When purchased, the property became, has been since, and still is their homestead within the meaning of the Constitution and other Laws of Texas. It is and has been occupied since such purchase, and is now occupied, as a homestead by them and their minor daughter. They and their minor daughter constitute a family within the meaning of the Laws of Texas.
(c) Plaintiff Mrs. Morgan claims that such property was purchased with money belonging to her separate estate. It is unquestionably true that Morgan, her husband, received from her, a considerable period of time prior to such purchase, funds belonging to her separate estate which she intended should be used by him to pay for or make a payment on a home. These funds of plaintiff were mixed and mingled with his own funds, and it is not clear that they were on hand at the time of the purchase of this property. The evidence is far from satisfactory that any part of plaintiff's funds went into the purchase of such property. I find that they did not, but that the cash or down payment therefor was made out of community funds of Morgan and plaintiff, and the deferred payment of $10,000 was evidenced by the Note of Morgan and plaintiff. Some of the payments on such Note have, however, been made out of the separate property and estate of plaintiff.
1: Citing Section 3653(a), Title 26 U.S.C.A.2 Defendant says that this Court is without power to enjoin, and is prohibited from enjoining, the sale of such property. This Section applies to the enjoining of the sale of the taxpayer's property. This is not a suit by the taxpayer to enjoin the sale of his property, but a suit by plaintiff, Mrs. Morgan, to enjoin the sale of property which she claims to be a part of her separate property and estate and also which she claims to be her homestead.
2: Under the foregoing facts, it is well settled in Texas that since the property in question was acquired by Mr. and Mrs. Morgan during marriage, it became and has remained their community property. Certainly it is presumed to be their community property. Article 4619, Vernon's Civil Statutes of Texas.3 Stiles v. Japhet, 84 Tex. 91, 95, 19 S.W. 450, 451,4 and cases cited and which follow. The burden is on plaintiff to show to the contrary. This burden she has failed to meet.
Plaintiff is, therefore, not entitled to restrain the sale of the property on the ground or theory that it is her separate property.
3: But since the property is her homestead, I think plaintiff is entitled to enjoin the sale, not only of her homestead right or interest, but she may enjoin any act or conduct that tends to disturb her right to the possession and the full and complete enjoyment thereof. In order to so protect her right, it appears to be necessary to enjoin the sale of the interest of her husband, Claude F. Morgan, and I think she may do so. Her homestead right or interest is indivisible and extends to all and every part of the property. She and her child or children are entitled to use it as a home either with or without the presence of the husband. Speer's Law of Marital Rights in Texas, Section 454.5 Any disposition of the husband's interest which interferes with her possession and use, reduces or affects its value, or clouds her title may be enjoined. Paddock, Trustee v. Siemoneit, Tex.Sup., 218 S.W.2d 428; Jones v. Kemp, 10 Cir., 144 F.2d 478; Shambaugh v. Scofield, 5 Cir., 132 F.2d 345; United States v. Dallas National Bank, 5 Cir., 152 F.2d 582; Dallas National Bank v. United States, 5 Cir., 167 F.2d 468.
This does not mean that the Government's lien against the interest of the husband is set aside or held for naught. It remains intact but may not under present conditions be enforced by the proposed sale to the hurt and injury of the wife.
The facts in Shambaugh v. Scofield, supra, the leading case in this Circuit, differ from the facts here. In that case, both Shambaugh and his wife owed the taxes and the Collector proposed to sell the entire interest of both husband and wife in the homestead. Here it is not claimed that the wife owes the taxes, and she is not mentioned in, nor is she a party to, any of the proceedings looking to the sale of the property. The proceedings are wholly against the husband.
Decree will enter, granting plaintiff the relief prayed for.
1 The notice of seizure and sale is as follows:
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...1960). 7.United States v. Hershberger, 475 F.2d 677, 682 (CA10 1973); Jones v. Kemp, 144 F.2d 478, 480 (CA10 1944); Morgan v. Moynahan, 86 F.Supp. 522, 525 (SD Tex.1949); Bigley v. Jones, 64 F.Supp. 389, 391 (WD Okla.1946); Paddock v. Siemoneit, 147 Tex. 571, 585, 218 S.W.2d 428, 436 (1949)......
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