Posey v. Commercial Nat. Bank

• Decision Date: 22 December 1932
• Docket Number: No. 1345-5893.,1345-5893.
• Citation: 55 S.W.2d 515
• Parties: POSEY v. COMMERCIAL NAT. BANK et al.
• Court: Texas Supreme Court

55 S.W.2d 515

POSEY v. COMMERCIAL NAT. BANK et al.

No. 1345-5893.

Commission of Appeals of Texas, Section B.

December 22, 1932.

Error to Court of Civil Appeals of Third Supreme Judicial District.

Suit by Mrs. Mary V. Posey against the Commercial National Bank and others to remove cloud from title to certain realty, wherein defendants filed a cross-action. Judgment was rendered in favor of plaintiff, and defendants, other than one Neely who filed a disclaimer, appealed to the Court of Civil Appeals [34 S.W.(2d) 678], which affirmed the judgment in part and in part reversed the judgment and remanded with instructions, and plaintiff brings error.

Judgment of Court of Civil Appeals reversed, and that of trial court affirmed.

E. A. Wallace, of Cameron, for plaintiff in error.

Cunningham, Moursund & Johnson, of San Antonio, for defendants in error.

SHORT, P. J.

The following brief yet comprehensive statement of the nature and result of this case is made by the plaintiff in error, in her application for the writ of error:

"This case was brought by the plaintiff in error, Mrs. Mary V. Posey, against the defendants in error, The Commercial National Bank, et als., in the District Court of Milam County, primarily to remove cloud cast upon her title to her homestead, by the defendants in error having recorded in that county (the homestead being in the City of Cameron) abstracts of judgment in their favor against L. H. Posey, the divorced husband of the plaintiff in error, and, in the alternative, to charge against one-half of the property one-half the amounts expended by her in the support of the minor children of herself and said husband prior to and subsequent to the divorce, and for one-half of the payments made by her in discharging pavement liens fixed against the property subsequent to the divorce.

"The defense was (defendant in error Neely having disclaimed) that the said L. H. Posey had conveyed to his wife, while the divorce suit was pending, one-half interest in the homestead, together with the right to the use thereof during life, and, the divorce having thereafter been granted, thereby his homestead estate in the property was terminated as a matter of law because, thereafter, his estate in the property was one in remainder which would not support the homestead estate; therefore, the abstracts of judgment attached as liens, which they sought to have foreclosed by cross action.

"The case was tried to the court December 5, 1929, and judgment was given plaintiff in error upon her primary cause of action removing the cloud upon, and quieting her title to the property, and denying the cross relief sought by defendants in error. Upon appeal to the Honorable Court of Civil Appeals for the Third Supreme Judicial District by defendants in error, the judgment of the trial court was in part reversed and remanded to that court with instructions to foreclose the judgment liens upon one-half of the property, and to order sale thereof, but to withhold writ of restitution until the life estate conveyed to plaintiffs in error by said deed was terminated."

The opinion of the Court of Civil Appeals is reported in 34 S.W.(2d) 678.

The application for the writ of error asserts that the opinion of the Court of Civil Appeals in this case is in conflict with the opinions in several cases mentioned, and the writ of error was granted on account of the conflicts alleged. We think the Court of Civil Appeals was correct in every one of its holdings, except that which is assigned in the following statement as error, and we will not discuss these correct holdings as they are immaterial to the decision of the case. The following assignment of error pertinently presents the matter, which we think necessary to discuss: "The court erred in sustaining the first proposition contained in the brief of the appellants, and their assignments of errors Nos. 1, 2, 11, 13, 16, 17, and 18, upon which such proposition is based, by holding in its opinion that the conveyance to appellee by L. H. Posey, her former husband, of a right to the use of the homestead of the family during life, constituted, as a matter of law, an abandonment of his homestead estate in the property in question, notwithstanding the undisputed facts of the record that such property was dedicated as the homestead of the family of said L. H. Posey by actual and continuous usage by his family since February 25, 1910, and that at the time of the making of the conveyance in question said property was still used by him as the homestead of the family; and regardless of the fact that at the time the conveyance was made a suit was pending against said L. H. Posey by appellee for a divorce, and that such conveyance, by the recitals thereof, and by the undisputed evidence in the record, showed that the consideration therefor, and the purpose and intention of the maker, L. H. Posey, was to avoid the necessity of the court in which the divorce case was pending, making an adjudication to appellee of the usage of the homestead for herself and minor children; and that the consideration for said conveyance accruing to L. H. Posey, and his purpose and intention in making it, was to secure, and to preserve his homestead; and regardless of the fact that the decree of divorce made no award of the custody of the children, and no disposition of the property, and of the further fact that his said minor children continued to occupy the property as his homestead up to the time he conveyed to appellee his entire estate in the property, and that she and her minor son were still using it at the time of the trial below, and that never for a moment since 1910, when the homestead was purchased and dedicated, to the time of the trial, had the family of L. H. Posey ceased to occupy and use the property as their homestead."

The proposition presented under this assignment, which we think is the correct statement of the law of the case, is as follows: "First Proposition. Posey's conveyance to his wife of her one-half interest in the home with the right to use the whole, under the attending circumstances, and for the consideration and purposes shown in the assignment, was not such an alienation of the property as destroyed his homestead estate therein."

The effect of the particular holding of the Court of Civil Appeals, in its opinion, is that so long as the marital relations continued between the parties, the homestead character of the property remained, but that Posey's act in conveying to his wife one-half of the property, with the right to use his half during life, constituted an abandonment of the homestead as a matter of law, and thereafter Posey had only an interest in the remainder of the property, which could not support a homestead right therein, regardless of the undisputed fact that the conveyance in question expressly stated that it was made for the consideration and purpose of avoiding an adjudication in the divorce case brought by his wife against him, of the identical rights conveyed to her by Posey, to which right the conveyance recognized she was entitled, and that the court should adjudicate to her, and notwithstanding the undisputed evidence that the property had been the homestead of the parties for many years prior thereto, actually occupied and used by Posey's wife and minor children at the time of the divorce, and which use and occupancy by his children was continued to the very moment of trial, and notwithstanding Posey's undisputed evidence that he made the conveyance in the form it was, for the purpose of preserving the homestead which he never intended to give up.

The Court of Civil Appeals cites several cases in support of its holding, but we have examined all of these cases and find the facts radically different from the facts in this case in every one of them, and therefore we have concluded...