Sargeant v. Sargeant

• Decision Date: 03 April 1929
• Docket Number: (No. 1215-5083.)
• Citation: 15 S.W.2d 589
• Parties: SARGEANT et al. v. SARGEANT.
• Court: Texas Supreme Court

15 S.W.2d 589

SARGEANT et al. v. SARGEANT.

(No. 1215-5083.)

Commission of Appeals of Texas, Section A.

April 3, 1929.

Certified Questions from Court of Civil Appeals of Second Supreme Judicial District.

Suit by Benjamin F. Sargeant and others against Mary Louise Sargeant. A judgment denying plaintiffs part of the relief sought was affirmed by the Court of Civil Appeals, which certified certain questions to the Supreme Court on motion for rehearing. Questions answered.

Jos. F. Greathouse, of Fort Worth, for appellants.

R. C. Fuller and W. M. Short, both of Fort Worth, for appellee.

Statement of the Case.

CRITZ, J.

The Court of Civil Appeals for the Second Supreme Judicial District has certified the following statement and questions:

"This cause is based on a partition suit filed by Benjamin F. Sargeant, his daughters, Mrs. Weatherford and Mrs. Brown, joined by their husbands, and a son, H. H. Sargeant, against Mary Louise Sargeant, a minor granddaughter. The property involved is a rooming house of 40 rooms built during the marital life of B. F. Sargeant and his now deceased wife, Mrs. Mary Jane Sargeant, who died July 9, 1919. The defendant is a daughter of a deceased son, who died in 1918.

"The trial court found that the property in question was the actual and the business homestead of B. F. Sargeant and his wife during her lifetime and had been used as such since her death. Plaintiffs sought a judgment of partition and also a judgment against the minor defendant for her pro rata part of certain itemized expenses alleged to have been incurred in the upkeep of the property, such as taxes, city, county, and state, alleged to have been paid since the death of Mrs. Sargeant; a note for $3,264.32, alleged to have been executed prior to the wife's death and since paid by B. F. Sargeant, the proceeds from said note alleged to have been used for the payment of taxes due on the property. In addition to taxes, plaintiff sought to recover from defendant a $480 item for the installation of an automatic heater, $400 for the installation of a `permanent fire escape' for said building, and certain items of fire insurance, etc. Plaintiff alleged that these items of expense aggregated $8,733.03. The property was sold pending the suit for $45,000; plaintiffs receiving another piece of property in trade, valued at $20,000. The trial court found that the rentals from the property during the time subsequent to the death of Mary Jane Sargeant exceeded the expenditures for all purposes, and for which the right of contribution was sought against the defendant, by more than $2,000. The trial court granted the partition, but failed to grant plaintiffs the right of contribution as against defendant for the expenses alleged and established by the evidence. From this judgment plaintiffs have appealed.

"On original hearing, we affirmed the judgment below, but on motion for rehearing we are not entirely agreed as to what judgment should be entered, and consider it advisable to submit to your honors the questions hereinafter set out. Appellee pleaded below the two-year statute of limitation. We are of the opinion that such plea should be sustained as to all items of expense incurred and paid more than two years prior to the filing of the suit, on, to wit, February 24, 1927. Hanrick v. Gurley, 93 Tex. 458, 54 S. W. 347, 55 S. W. 119, 56 S. W. 330. This leaves three items of taxes, aggregating $887.35, and the taxes due and unpaid for subsequent years and up to the time of the trade, aggregating $1,709.61, the total of which, in our opinion, is not barred by limitation, and at least two of us are of the opinion that as to these items the appellee should have been required to make contribution.

"One item of $106.97 was paid to the receiver by the purchaser as accrued taxes up to the date of the trade on the property given in part exchange for the property in controversy. The appellants took this property. The trial court added this item to the price for which the property was sold, and awarded appellee a one-eighth interest in the total, less some items of cost. Some of us believe that this item should not have been added to the price for which the property was sold, but was in fact due the appellants; that such item of taxes was not part of the price for which the property was sold.

"Question 1. Is the two-year statute of limitation a bar, in this case, to all items of expense, accruing and paid for prior to two years before the filing of the suit?

"Question 2. Should the item of $106.97 be added to the price for which the property was sold, and appellee awarded one-eighth of the total?

"Question 3. Where the facts showed that, during some eight years subsequent to the death of Mrs. Sargeant, the income from the property exceeded the expenses thereon by more than $2,000, and the property was shown to be a business homestead, and in the absence of any specific language in the Constitution or in any statute making such income the separate property of the plaintiff, and in view of the fact that there was no proof in the record that such excess was absolutely necessary to the support of the survivor: (a) Was such income the separate property of B. F. Sargeant? (b) Was such excess the separate property of B. F. Sargeant?

"Question 4. Are the principles of equity to be applied in deciding this case, or are merely questions of law involved?

"For the authorities touching the third question, we have examined Hinzie v. Moody, 13 Tex. Civ. App. 193, 35 S. W. 832, writ of error denied; 13 R. C. L. p. 595, § 59; Pryor v. Stone, 19 Tex. 371, 70 Am. Dec. 341; Ackley v. Chamberlain, 16 Cal. 181, 76 Am. Dec. 516; Garrett v. Jones, 95 Ala. 96, 10 So. 702; Goldman v. Clark, 1 Nev. 607; Bailey v. Bauknight (Tex. Civ. App.) 25 S. W. 56; Turner v. Turner, 107 Ala. 465, 18 So. 210, 54 Am. St. Rep. 110; Laughlin v. Wright, 63 Cal. 113; McDowell v. His Creditors, 103 Cal. 264, 35 P. 1031, 37 P. 203, 42 Am. St. Rep. 114; and other cases cited in 41 L. R. A. (N. S.) at page 304.

"Appellee calls our attention to the fact that plaintiff did not specifically seek to recover for the state and county taxes for the year 1924, paid January 26, 1925, until he filed his first amended petition, on April 6, 1927, and that therefore, if limitation applies at all it applies to this item. But, if your honors decide that limitation does apply, we can, in our judgment, determine its application to this and other items."

Opinion.

As will later appear by this opinion, we do not find it necessary to discuss question No. 1, except in so far as it may apply to the note for $3,264.32. later discussed.

As to question No. 2, it seems to be agreed that the receiver received from the purchaser the sum of $45,000 for the property in question in this suit, included in which was certain other property to be taken by the plaintiffs herein, all being adults, in lieu of money, at the price of $20,000, upon which last-named property there had accrued, at the time of the sale, taxes which the purchaser of the property involved in this suit paid to the receiver, the sum of $106.97. From the above we conclude that the appellants took the property which was exchanged in part payment for the property in question in this suit at the value of $20,000, and that taxes had accrued against the property being taken by appellants to the amount of $106.97, at the time of the sale. The purchaser of the property in question herein was therefore compelled to pay said $106.97 to make his property of the value of the $20,000 for which appellants were receiving same. Under this state of facts appellants would be entitled to all of the $106.97, and appellee would not be entitled to any portion thereof, as appellants are fully charged with this amount when they are charged with the $20,000.

As to question No. 3, we are of the opinion that, under the various provisions of our Constitution and the statutes of this state, which will be later quoted in this opinion, all revenues, rents, and income derived from the homestead, as such, are the separate and individual property of the survivor, and that without any reference whatever to whether the same is rented out either in whole or in part by the survivor, or used by him in a business of his own. Under section 52 of article 16 of our Constitution it is provided expressly that "it shall not be partitioned among the heirs of the deceased during the lifetime of the surviving husband or wife, or so long as the survivor may elect to use or occupy the same as a homestead." Under article 3501, R. C. S. 1925, this provision of the statute is also contained in statutory form, and it is there provided that the homestead shall not be partitioned among the heirs of the deceased wife during the lifetime of such surviving husband, or so long as he may elect to use or occupy the same as a homestead. Mattingly v. Kelly (Tex. Civ. App.) 124 S. W. 483; Roberts v. Roberts (Tex. Civ. App.) 278 S. W. 937; Salmons v. Thomas, 25 Tex. Civ. App. 422, 62 S. W. 102; Ruble v. Ruble (Tex. Civ. App.) 264 S. W. 1018. The very plain provisions of the Constitution and statutes of this state can have no other meaning than to vest the survivor with all income of every character derived from the homestead, so long as the homestead rights shall exist, as his separate and individual property. In holding that the rents and revenues derived from the homestead are the separate and individual property of the survivor, we are not considering a case where minor children and unmarried daughters are permitted under the statute, by proper proceedings, to occupy the homestead. No such case is before us.

As to the item of $3,264.32, being the note paid by appellant, we are of the opinion that it is a proper charge against the community estate, and the survivor, having paid all of same out of his separate funds, should be reimbursed by the heirs of the wife for one-half thereof. The indebtedness was...