Rudasill v. Rudasill, (No. 8244.)

• Decision Date: 31 January 1920
• Docket Number: (No. 8244.)
• Citation: 219 S.W. 843
• Parties: RUDASILL v. RUDASILL et al.
• Court: Texas Court of Appeals

219 S.W. 843

RUDASILL v. RUDASILL et al.

(No. 8244.)

Court of Civil Appeals of Texas. Dallas.

January 31, 1920.

On Motion for Rehearing, March 13, 1920.

Appeal from District Court, Grayson County; Silas Hare, Judge.

Action by Permalla C. Rudasill against Emanuel Rudasill and others. From the judgment denying part of the relief sought, plaintiff appeals. Affirmed in part, and reversed and rendered in part.

See, also, 206 S. W. 983.

Head, Dillard, Smith, Maxey & Head, of Sherman, for appellant.

Wood, Jones & Hassell, of Sherman, for appellees.

TALBOT, J.

The appellant brought this suit against the appellee Emanuel Rudasill, who will be referred to as appellee, for divorce and an adjustment and settlement of their property rights. Thereafter, by an amended petition, their three sons, W. S., S. E., and Pearl Rudasill, who were claiming some of the personal property involved in the suit, were made parties defendant. The case was submitted to a jury on special issues, and upon their findings judgment was rendered denying the appellant's prayer for divorce and determining and fixing the rights of the parties to the property in controversy. No complaint is made in this court of that portion of the judgment denying appellant a divorce, and the sufficiency of the pleadings is not questioned. The material facts, as disclosed by the evidence and the findings of the jury, are substantially as follows: The appellant was formerly Permalla C. Tait, a widow, and came to Texas from Louisiana in company with her two sons, J. M. and C. A. Tait, and her father, Eph Carpenter. She and the appellee, Emanuel Rudasill, were married in Grayson county, Tex., in February, 1871, and have lived in said county ever since that date. Prior to appellant's marriage with the appellee, and on September 27, 1870, J. H. Weaver conveyed to her in her then name of Permalla C. Tait, by general warranty deed, two tracts of land situated in Grayson county, Tex., containing respectively 363 and 20 acres of land for the recited consideration of $3,500 cash and a note for $1,000 signed by E. Carpenter, who was Mrs. Tait's father. The cash consideration of $3,500 was paid by Mrs. Tait out of the proceeds of cotton raised by her and her first husband in Louisiana, and brought by her to Texas before she married the appellee, $2,000 of which was treated as belonging to her two sons, J. M. and C. A. Tait. The $1,000 note recited as a part of the consideration for the purchase of the land was paid with $800, which was given Mrs. Tait by her father, E. Carpenter, the signer of the note, and the balance with money which was the separate property of Mrs. Tait. Soon after their marriage, and in 1871, appellant and appellee moved upon the 363 acres of land described in the deed of September 27, 1870, and have ever since resided upon it as their home. About 1883 the $2,000 of the Tait boys' money their mother had used in paying for the 363 and 20 acre tracts of land was repaid to them by the appellee out of community funds belonging to him and his wife. The appellees W. S., S. E., and Pearl Rudasill, sons of the appellant and the appellee, now aged respectively 46, 44, and 42 years, were reared on the 363-acre tract of land and supported and educated from the proceeds arising from the cultivation and use thereof. S. E. and Pearl Rudasill have always resided and still reside on said land, and W. S. Rudasill resided thereon until about ten years ago. Since 1891 the 363-acre tract and 40 acres of land, the community property of the appelland and the appellee, and 160 acres of land belonging to appellees S. E. and Pearl Rudasill, have been occupied and cultivated by all of the appellees without any express agreement between them or with the appellant. The proceeds arising from such use of lands were kept in bank in the name of the father, Emanuel Rudasill, and each one of the appellees used of this common fund whatever amount he needed. The appellant was aware of the way these lands had been previously cultivated and the proceeds arising therefrom appropriated, and during the season 1917-1918 they were cultivated the same way without any express assent or dissent on her part. There was at the time of the trial of this case in the hands of the appellee the sum of $4,338.58, the proceeds of the crop raised on the 363-acre tract since the act of the Legislature of 1917 has been in force. In May, 1918, the appellant left the appellee, and has ever since remained away from him. Prior to and at the date of the deed dated September 27, 1870, conveying the 363 and 20 acre tracts of land to appellant, she and the appellee were engaged to be married, and it was agreed between them that they should purchase said lands, and that they would own it in equal portions — that is, one-half each. Appellee did not contribute any part of the cash that was paid for the lands, nor did he pay any portion of the $1,000 note recited in the deed as a part of the consideration for the purchase of the lands. Prior to the filing of this suit the appellant never denied that appellee had any interest in the 363 and 20 acre tracts of land. There have been improvements placed upon the 363-acre tract by the appellant and her husband of the value of $4,085, and the value of the land has been enhanced thereby $4,085. Appellee did not contribute anything out of his separate means towards the cost of said improvements. The fair cash rental value of the 363-acre tract per year since the marriage of appellant and the appellee has been $907.50. There were raised during the season of 1918 on the 363-acre tract 3,772 bushels of grain, of which 520 bushels were kept for seed, and 3,252 bushels sold; on the 40-acre tract 383 bushels, all of which were sold; on the 160-acre tract owned by S. E. and Pearl Rudasill 2,468 bushels, all of which were sold. This grain was sold at $2.11¾ per bushel, and at the time this suit was tried, $5,370.25 of the amount thereof was on deposit in the Merchants' & Planters' National Bank, and $2,816.10 was held by the Diamond Mills. The proportion of the money received on the different tracts is as follows: On the 363 acres 53/100; on the 40 acres 6/100; and on the 160 acres 41/100.

Upon the return of the jury's special verdict both appellant and appellees filed motions for judgment, which were granted in part and refused in part. In adjusting and fixing the rights of the respective parties, the trial court, among other things which are not complained of on this appeal, adjudged the 363 acres and the 20 acres described in the deed from J. H. Weaver to Permalla C. Tait, dated September 27, 1870, to be the separate property of the appellant; that the homestead of the appellant and appellee had been and was at the institution and trial of this suit situated upon the 363-acre tract; that 200 acres of said tract, described by metes and bounds, be set aside as the homestead of appellant and appellee, and that the said appellee, being the head of the family, should have the control thereof as long as he occupied it as a home, and that he and his wife should jointly be entitled to the revenues arising therefrom as community property; that the appellant should have the control and management of the balance of said 363-acre tract and the 20-acre tract; and that appellees and each of them be enjoined from interfering therewith. Of the $5,370.25 in the Merchants' & Planters' National Bank and $2,816.10 in the Diamond Mills, $650.70 was adjudged to be the separate property of the appellant, and each of the appellees awarded one-fourth of the balance; the one-fourth adjudged to appellee Emanuel Rudasill being declared to be the community property of himself and the appellant. Both the appellant and appellee filed and presented motions to "correct and amend" the judgment rendered which appear to have been overruled. The appellee Emanuel Rudasill then filed a motion for a new trial, which was also overruled. No motion for a new trial, unless her motion to correct and amend the judgment may be considered such or equivalent thereto, was filed by the appellant. The judgment rendered, as well as the court's action in refusing to correct and amend the same, was excepted to, and the appellant perfected an appeal to this court.

Appellant presents and urges in her brief five assignments of error. The first, second, and fourth are grouped and are to the following effect:

"The court erred in rendering the following part of section V of the judgment, viz.: `Out of the 363-acre tract referred to in paragraph 4 hereof there is hereby set aside to the plaintiff and the defendant Emanuel Rudasill 200 acres as a homestead.'"

"The court erred in rendering section VII of the judgment as follows: `The 200-acre homestead set apart in paragraph 4 hereof is here recognized as the homestead of plaintiff and defendant Emanuel Rudasill, and they are hereby adjudged to be entitled to occupy it as such, and jointly to be entitled to the revenues arising therefrom. The defendant Emanuel Rudasill, being the head of the family, is hereby adjudged to have the right of control of the said 200-acre homestead as long as the same is occupied by him as a homestead.'"

"The court erred in not rendering judgment upon the verdict of the jury and the evidence in favor of the plaintiff giving her the right to the control, management, rents, and revenues of all of the 363 and 20 acre tracts adjudged to be her separate property, and enjoining the defendants from interfering therewith."

The third and fifth are likewise grouped and are as follows:

"The court erred in rendering section VIII of the judgment, as follows: `The funds on hand, to wit, $5,370.25 in the Merchants' & Planters' National Bank, and $2,816.10 in the Diamond Mills, are hereby adjudged as follows: To the plaintiff in her own separate right $650; to the defendant, Emanuel Rudasill, for the community estate of himself and plaintiff, $1,883.91; to W. S....