Orr v. Pope

• Decision Date: 21 February 1966
• Docket Number: No. 7570,7570
• Citation: 400 S.W.2d 614
• Parties: Maudie ORR et al., Appellants, v. C. U. POPE et al., Appellees. . Amarillo
• Court: Texas Court of Appeals

Page 614

400 S.W.2d 614

Maudie ORR et al., Appellants, v. C. U. POPE et al., Appellees.

No. 7570.

Court of Civil Appeals of Texas Amarillo.

Feb. 21, 1966.

Gene E. Steed, Perryton, Linn & Helms, Spearman, for appellant.

Allen, Allen & Reavis, Perryton, Jerry J. Miller, Amarillo, for Phillips Petroleum Co.

DENTON, Chief Justice.

This trespass to try title suit was brought by Appellees, C. U. Pope, his brothers and sisters and the children of his deceased brother and sisters, all either children or grandchildren of W. L. Pope, Sr., and Lula Pope, both deceased, against the heirs at law of Eunice Pope, deceased, wife of W. L. Pope, Jr. Plaintiffs below seek to recover title and possession of an undivided one-half (1/2) interest in the surface of the:

N.W. 1/3 of Section 140, Block 4T, T. & N.O. Ry. Co. Survey, Ochiltree County, Texas;

and an undivided one-fourteenth (1/14) of the mineral interest of that section. All parties filed motions for summary judgment and the trial court granted plaintiffs' motion and defendants below have perfected this appeal.

Plaintiffs C. U. Pope, Alice Pope Fling, Tillman B. Pope and Sally Pope Cocannoeur are the surviving children of W. L. and Lula Pope; Anna Louise Pope VanSant, Jackie Lee Pope and Alfred J. Pope the surviving children of H. B. Pope, deceased, a son of W. L. and Lula Pope; Floy McAllister, Morgan and Pauline McNeeley and Orbye McAllister the surviving children of Ethel Pope McAllister, deceased, a daughter of Mr. and Mrs. Pope, brought this suit against Maudie Orr, Earl Appleton, Ivan Appleton, Rubert Appleton and Bonnie Bealmuer, and brothers and sisters of Eunice Pope, deceased, wife of W. L. Pope, Jr. Phillips Petroleum Company, the owner of a certain pipe line right-of-way and an oil and gas mineral lease of the property involved was impleaded as a party defendant. All parties hereto have recognized Phillips' interest and that issue is not before us.

The material facts are undisputed. The case was submitted to the trial court on the pleadings, affidavits, stipulations, depositions, admissions and interrogatories. W. L. Pope, Sr. and wife, Lula Pope were the owners of all of Section 140. It constituted their community property and they are the common source of title. Lula Pope predeceased her husband intestate, and there was no administration of her estate. The seven children named above were born of this marriage. W. L. Pope, Sr., died testate in 1945 and his will was probated on July 10, 1945. This will devised various mineral and surface interests to the named children or their heirs and included a devise to W. L. Pope, Jr., of the surface rights to the N.W. 1/4 of Section 140. On June 7, 1945, all heirs at law of W . L. Pope, Sr. and Lula Pope, except C. U. Pope, executed a quit claim deed conveying all of Section 140 to C. U. Pope. Thereafter, on July 10, 1945, C. U. Pope joined by his wife, Fern Pope, executed a series of warranty deeds and mineral deeds conveying to the various heirs certain interests in Section 140. Two of these deeds included a mineral deed conveying an undivided 1/7 of the minerals under Section 140 and a warranty deed conveying the surface of the N .W. 1/3 of Section 140 to W. L. Pope, Jr., containing 213.33 acres, subject to 1/3 of the outstanding indebtedness owed to the Federal Land Bank. Both deeds recited that W. L. Pope, Jr., was a resident of Multnomah County, State of Oregon. W. L. Pope, Jr., died intestate on January 6, 1958, and his surviving wife, Eunice Pope, died intestate on September 16, 1962. No children were born of this marriage and none were adopted. Appellants, the natural brothers and sisters of Eunice Pope, are her only surviving heirs at law.

The primary question to be determined is whether the surface and mineral interests so acquired by W. L. Pope, Jr. was his separate or community property. Appellants contend the property having been acquired by W. L. Pope, Jr. while he was married to Eunice Pope is presumed to be community property; that such presumption was not rebutted and that upon the death of Eunice Pope, the survivor, the property was inherited by appellants under the laws of descent and distribution of the State of Texas. Appellants concede the undivided 125.7 acres of Section 140 may have originally been the separate property of W. L. Pope, Jr., by virtue of his inheritance of approximately 45.7 acres from his mother and the 80 acres bequeathed by his father's will; but that this property has been co-mingled with the balance of the property he later acquired, and that therefore, all such property became community property. These general principles of law are sound but the question is whether or not these well-established principles are applicable under the uncontroverted facts of this case.

We have concluded the judgment of the trial court should be affirmed. In the first place, it is the law of this state that where a husband acquired real property situated in Texas while he resides in a common law state, the real property is the separate property of the husband. Huston v. Colonial Trust Company (Tex.Civ.App.) 266 S.W.2d 231 (Ref. N.R.E.); Tasher v. Foster Lumber Company (Tex.Civ.App.) 205 S.W.2d 665; Toledo Society for Crippled Children v. Hickok (Tex.Civ.App.) 252 S.W.2d 739 (Modified by the Supreme Court) 152 Tex. 578, 261 S.W.2d 692, 43 A.L.R.2d 553; McDowell v. Harris (Tex.Civ.App.) 107 S.W.2d 647 (Error dismissed). It is uncontradicted that W. L. Pope, Jr. and wife, Eunice were residents of the State of Oregon at the time the two deeds of July 10, 1945, in which W. L. Pope, Jr. was grantee, were executed. It was established that at all times material to this question, Oregon was a common law state. This was established by written interrogatories propounded to an attorney duly licensed by that state. Under the authorities and the state of this record, we conclude the undivided 1/7 mineral interest under Section 140 and the N.W. 1/3 of that section, conveyed to W. L. Pope, Jr. by C. U. Pope and wife was the separate property of the said W. L. Pope, Jr. at the time of such conveyance. It is settled that property acquired during marriage takes its status as separate or community property at the time of its acquisition, and that such status is fixed by the facts or circumstances by its acquisition at that time. Smith v. Buss, 135 Tex. 566, 144 S.W.2d 529; Lindsay v. Clayman, 151 Tex. 593, 254 S.W.2d 777. By both the devise in W. L. Pope, Sr.'s will and the warranty deed of July 10, 1945, W. L. Pope, Jr., the devisee and grantee, assumed and obligated himself to pay the proportionate share of the indebtedness owed on Section 140. This...