Norwood v. King

• Decision Date: 05 March 1913
• Citation: 155 S.W. 366
• Parties: NORWOOD et al. v. KING.
• Court: Texas Court of Appeals

155 S.W. 366

NORWOOD et al. v. KING.

Court of Civil Appeals of Texas. San Antonio.

March 5, 1913.

Rehearing Denied April 2, 1913.

Appeal from District Court, Karnes County; John M. Green, Judge.

Action by G. H. King against J. S. Norwood and others. From a judgment for plaintiff, defendants appeal. Affirmed.

M. B. Little, of Karnes City, for appellants. A. J. Parker, of San Antonio, for appellee.

TALIAFERRO, J.

This suit was in trespass to try title by appellee against appellants to recover 9.8 acres of land in Karnes county described in the petition. Appellee claimed title to the whole tract by conveyance from Robert King, deceased. Appellants claimed an undivided one-half of the land as heirs of Sallie King, their grandmother, who was wife of Robert King. Appellee alleged that Robert King was survivor of the community estate of himself and Sallie King, deceased; that said community estate had been indebted to him; and that in consideration of the debt said Robert King, as survivor of the community, had sold and conveyed him the property in question in satisfaction of said debt.

Appellants, answering, alleged that appellee, G. H. King, knew, when he accepted the deed, dated April 10, 1906, that they were the owners of an undivided half interest in said land by inheritance from their grandmother, Sallie King, deceased, and that said deed was made and accepted with full knowledge by appellee, for the purpose of defrauding appellants of their interest in said land. No specific act is alleged as constituting such fraud. It is not alleged that there was collusion between appellee and Robert King to defraud them, nor that the price paid was inadequate to such a degree as to raise a presumption of fraud.

Appellee introduced in evidence a deed, dated November 1, 1902, from Otto Buchel to Robert King, conveying the property in question for a consideration of $171.50 on terms of $50 cash, and the balance payable in three annual installments of $40.50 each, evidenced by notes for that amount. Over the objection of appellants, he also placed in evidence (1) a written transfer of the last note of the said series, together with the legal title to the land, said instrument being dated December 23, 1905, and reciting that all the balance of the purchase money had been paid, and (2) a deed from Robert King to appellee, dated April 10, 1906, conveying the land in question and containing the following recital: "The consideration for said land above described is as follows: Whereas in the original purchase of said land by Robert King from Otto Buchel (as will appear from said deed) as part payment for the purchase money for said land the said Robert King did execute and deliver to said Otto Buchel his three promissory notes for the sum of $40.50 dollars each, due respectively 1903, 1904 and 1905 on the 1st day of November of each year, with 10% per cent. per annum and all interest to be paid annually on the 1st day of Nov. from date as long as said notes should remain unpaid, reserving a vendor's lien in each of said notes for the purchase money for said land; and whereas, on the 23rd day of December, 1905, Otto Buchel, the then legal holder of the 3rd series of said notes (the other two having been paid), transferred by an instrument in writing for a consideration of $45.30 to G. H. King of Gonzales county, Texas, said vendor's lien note No. 3 for $40.50 with interest from the 1st day of Nov., 1904, accrued; and whereas said last mentioned note is long past due and I, the said Robert King, am unable to pay the same or any part thereof, either principal or interest, or to cause the same to be paid: Now, therefore, in consideration of one dollar paid and the surrender and cancellation to me by the said G. H. King of said last above mentioned note and releasing me of any and all responsibility for the payment of the same (which surrender and cancellation is now done)."

No other evidence was introduced by appellee to show that the property was a part of the community of Robert and Sallie King, that the debt for which the property was sold was a community debt, or that the debt at the time was in fact unpaid.

Appellants introduced evidence which showed that Robert King held possession of the land, using it or enjoying it until he died, and tending to show that he had other property which he sold, either before or after the death of Sallie King, and from the proceeds of which he might have paid the debt due appellee. There is evidence also to the effect that the land, at the time of the sale to appellee, was worth from $150 to $400. No other evidence, except that of the inadequacy of consideration, was presented which could be considered upon the issue of fraud. No effort was made to show that the community debt did not exist as alleged, nor that it had ever been paid. Nor was it contended that the property was not community. Upon this state of the evidence the court peremptorily instructed the jury in favor of appellee.

It is settled law that community property descends charged with community debts, and where there are community debts the...