Morse v. Nibbs
| Decision Date | 22 October 1912 |
| Citation | 150 S.W. 766 |
| Parties | MORSE et al. v. NIBBS. |
| Court | Texas Court of Appeals |
Anselm H. Jayne and Dan H. Triplett, both of Houston, for plaintiffs in error. Wilson & Dabney, of Houston, for defendant in error.
This is a suit brought by the plaintiffs in error to recover from the defendant in error a one-fourth undivided interest in 200 acres of land, parts of the John D. Taylor league and the E. P. Whitehead survey, in Harris county. The defendant in error answered by a plea of not guilty. The case was tried by the court without a jury and resulted in a judgment for defendant in error, from which the plaintiffs in error have prosecuted this appeal.
The facts, in so far as they are material to a proper disposition of this appeal, are substantially as follows:
Mrs. Harriet George was the owner of several tracts of land, including the 200 acres in question. She died leaving a will in which she devised to her four grandchildren, C. C. Morse and Ella Morse, his sister, and Myra C. Smalley, who afterwards married Spencer, and her brother, Ennis Smalley, all her property, including the 200 acres, to be shared by them equally. Ella Morse afterwards died without issue and her fourth of the property passed by the laws of descent and distribution to her brother, C. C. Morse. On April 20, 1881, C. C. Morse married Ivie Beeler, and the plaintiffs in error are the issue of that marriage. August 1, 1893, by deed of said date, C. C. Morse purchased from Myra E. Spencer, formerly Smalley, her entire interest in all the lands devised to her by the will of Mrs. George, the consideration being $1,400, of which $500 was paid in cash and two promissory notes of even date with the deed, one for $400 and the other for $500, both bearing interest at the rate of 8 per cent. per annum from date. On May 1, 1894, C. C. Morse acquired by purchase all the land devised to Ennis Smalley by the will of Mrs. George, the consideration being $1,500, of which $400 was in cash and two promissory notes of said Morse, each for $550, bearing 8 per cent. per annum interest from date. The lands acquired by these purchases were the community property of C. C. Morse and Ivie Beeler Morse. Ivie Beeler Morse died intestate July 12, 1895. At the time of her death, the 200 acres was the homestead of herself and C. C. Morse. On June 6, 1896, C. C. Morse duly qualified as survivor of the community estate of himself and his deceased wife, Ivie Beeler Morse, and the list of claims filed at the time of the return of the inventory and appraisement showed that the community was indebted in the sum of $2,804.28, among the items of indebtedness being $900 principal and $163.40 interest, balance of purchase money due Myra E. Spencer, and $1,280 balance of the purchase money due Ennis Smalley for their interest in the land.
By deed dated July 11, 1896, but which it appears was not delivered until December 31, 1896, C. C. Morse conveyed the 200 acres, one-fourth of which is in controversy, to Sam Bongio for the recited consideration of $2,500, cash, and by deeds of same date, which were not delivered until December 31, 1896, said Morse conveyed other lands of the community to Paul Vunuto, Bongio's father-in-law. At the time of these transactions Bongio deeded to said Morse a place in the Fifth ward of the city of Houston for the recited consideration of $2,500.
It was shown by the testimony of the witness J. S. Feagan, an attorney at law, in substance, that he wrote all the deeds in the purchase of the property by Bongio from Morse and represented Bongio in the transactions; that Bongio would not buy until the vendor's notes held by Ennis Smalley and Mrs. Spencer had been paid in full; that the witness took the money that Bongio was to pay for the land and paid to Mrs. Spencer the amount of her notes, and a part of that which was due Ennis Smalley on his, and obtained from both releases of their respective vendor's liens; that Bongio paid all the purchase money for the lands, but directed that the deed to all of it should be made in the name of Vunuto, except to the 200 acres which was made to him; that Vunuto then gave to Ennis Smalley a deed of trust on the land placed in his name to secure the balance of the purchase money due Smalley, and that both Smalley and Mrs. Spencer released their vendor's liens on the 200 acres. His testimony further shows that for the land deeded to Bongio and Vunuto Morse, in addition to the money and notes paid him, received from Bongio a deed to the Fifth ward property, which recited a cash consideration of $2,500 paid. Afterwards Sam Bongio, joined by his wife, Josephine, and Frank Bongio, conveyed the 200 acres to defendant in error Nibbs.
By their first assignment of error and the second proposition thereunder plaintiffs in error contend in effect, that the court erred in not rendering judgment for them, because the evidence shows that the community debt due for the purchase money of the 200-acre homestead tract had been paid out of the proceeds of sales of other lands owned by the community, and that all community debts had been paid before the sale of the 200 acres or before its exchange with Bongio for the Fifth ward property in the city of Houston. The testimony of the witness J. S. Feagan refutes this contention. It was established by his uncontradicted testimony that at the time of the delivery to Bongio of the deed conveying the 200 acres the notes given by Morse to Ennis Smalley and Mrs. Spencer, which were unquestionably community debts, were outstanding and unpaid, and that Bongio refused to buy until these notes had been paid and the vendor's liens on the land, by which they were secured, had been released; that the witness carried the purchase money of the land with him to Houston with which the note of Mrs. Spencer was paid, and that of Smalley partly paid, and both liens discharged, and the releases executed, after which the deeds were delivered.
By their first proposition under this assignment plainti...
To continue reading
Request your trial
-
Fidelity Union Ins. Co. v. Hutchins
...Oil Co., 122 Tex. 237, 56 S.W.2d 1073. It was so held in Dawson v. Holt, supra, Cordier v. Cage, 44 Tex. 532, 533, Morse v. Nibbs (Tex. Civ.App.) 150 S.W. 766, and Stone v. Light (Tex.Civ.App.) 228 S.W. 1108, but the question like Bancho's ghost would not down. That the community administra......
-
Clemmons v. McDowell
...who were designed to be protected by the statute, have rights only in the residue after such debts are paid. Morse v. Nibbs (Tex. Civ. App.) 150 S. W. 766; Rippy v. Harlow, 46 Tex. Civ. App. 52, 101 S. W. 851; Allen v. Bright (Tex. Civ. App.) 23 S. W. 712; Fagan v. McWhirter, 71 Tex. 567, 9......
-
McCombs v. Abrams
...Civ. App. 133, 32 S. W. 359; Sanger Bros. v. Heirs of Moody, 60 Tex. 96; Lipsitz v. Rice (Tex. Civ. App.) 233 S. W. 594; Morse v. Nibbs (Tex. Civ. App.) 150 S. W. 766; Stone v. Jackson, 109 Tex. 385, 210 S. W. 953; Cage v. Tucker's Heirs, 25 Tex. Civ. App. 48, 60 S. W. 579, The precise ques......
-
Herrington v. Ayres
...Civ. App.) 155 S. W. 366 (error denied); Stone v. Light (Tex. Civ. App.) 228 S. W. 1108; Wenar v. Stenzel, 48 Tex. 488; Morse v. Nibbs (Tex. Civ. App.) 150 S. W. 766 (error denied); Crawford v. Gibson (Tex. Civ. App.) 203 S. W. 375; Wilson v. Helms, 59 Tex. 680; Ashe v. Yungst, 65 Tex. 631;......