Saylor v. Saylor
| Decision Date | 17 July 1929 |
| Docket Number | (No. 7359.) |
| Citation | 20 S.W.2d 229 |
| Parties | SAYLOR v. SAYLOR. |
| Court | Texas Court of Appeals |
Appeal from District Court, Mills County; Lewis H. Jones, Judge.
Suit by Mrs. Elizabeth D. Saylor against W. W. Saylor. Judgment for plaintiff, and defendant appeals. Affirmed.
E. B. Anderson, of Goldthwaite, for appellant.
J. C. Darroch, of Brownwood, for appellee.
Appellee sued appellant for divorce, custody of their minor children, and an undivided one-half interest in 657 acres of land alleged to be community. Appellant claimed the land was either his separate property or that of himself and children of a former marriage, and that it was his only means of support; he being 76 years old and suffering from neuritis and unable to perform manual or other labor. Appellee replied that appellant commingled each of their separate funds with their community funds in such manner that neither could be distinguished. and used same in paying for the land, community debts, and interest and taxes on the land, and was therefore estopped to deny her community interest in the land, which was in any event impressed with a lien to reimburse her separate and community funds; that 200 acres of the land was homestead, and that an undivided one-half interest therein should be decreed to her in fee; that if she had no interest in the land, then she had a homestead right in 200 acres with the improvements thereon for life; and that she had no means of supporting herself and children except by their labor in connection with the use of the entire 657 acres of land, which was necessary for that purpose and should be awarded to them until the youngest child was of legal age. Appellant replied that, if the homestead was awarded to appellee, provision should be made for payment of the outstanding indebtedness against the land.
The court tried the case without a jury and granted the divorce and awarded appellee the custody of four girl children, ages 8, 10, 12, and 16 years. The court found that appellant had commingled the separate funds of each spouse with their community funds in such manner that neither could be distinguished, and, in order to adjust the equities of the parties, awarded appellee an undivided one-half interest in the 200-acre homestead in fee, the use of the 200-acre homestead for life, and the use of the remainder of the land for five years for the support of herself and children, charged, however, with an award of $10 per month to be paid appellant from the income of the land, except the homestead. The land, except the homestead, was decreed to be the separate property of appellant. The court approved the agreed division of the personal property. Each spouse was directed to pay one-half of the taxes and one-half of the interest on an $800 indebtedness against a part of the land.
By this appeal appellant attacks only the portion of the judgment disposing of the real estate, and further contends that the award of only $10 per month to him under the facts of the case was manifestly unjust and unfair.
The evidence shows that appellee owned some horses and cattle of the value of $450 at the time of this marriage. Appellant also owned horses and cattle. Shortly after the marriage, appellant sold one of appellee's horses for $65 and commingled and used the funds for community purposes. During the 23 years the parties lived together as man and wife, appellee kept a written account of the value of the increase of her live stock which totaled more than $1,000. A separate account was kept in her name in a bank which totaled $1,000. Appellant also kept a separate bank account in his name. There was no specific agreement that the increase of appellee's live stock would constitute her separate property, but appellant told her that he would see that she "never lost anything" and that she "got what was coming" to her. Appellant drew upon his wife's account and used the $1,000 in paying community debts and interest and taxes on the land in suit, some of which was purchased before this marriage and some afterwards. Appellee paid $23 for feed for appellant's live stock after their separation. The trial court found under this evidence that appellant used $1,023 of appellee's separate funds in paying community debts and taxes and interest on the land in suit. Appellant attacks this finding as not being sufficiently supported by the evidence under the general rule that all the increase of live stock owned by one spouse becomes the community property of the two, absent an agreement to the contrary. We think the fact that the parties kept an account of the value of the increase of appellee's live stock and a separate account in appellee's name in the bank of equal value is sufficient evidence of an implied agreement to consider such increase as appellee's separate property.
But, if the evidence should be held insufficient except the $65 for which appellee's horse was sold, and which is admitted to be her separate funds, the finding is not necessarily material, because the funds were in any event community funds and properly taken into consideration by the court in adjusting the equities of the parties, which question will be later discussed.
Another attack on the judgment is that the court erred in finding that all the land except the 200-acre homestead was the separate property of appellant, because it is contended that the evidence shows it was the property of appellant and his children of a former marriage. The children of the former marriage are not parties to this suit, and are not bound by the judgment if they have any interest in the land. They are all of legal age, and appellant is not shown to have any right to assert their interest. The land for the purposes of this divorce proceeding may therefore be regarded as appellant's separate property.
Nor do we sustain the attack on the judgment that the court erred in finding the 200-acre homestead to be the community property of this marriage, and in awarding appellee an undivided one-half interest in same in fee. The evidence shows that appellant purchased the southwest quarter of section 14 as school land from the state prior to this marriage, paying down one-fortieth of the consideration. Since this marriage he has paid the taxes and interest thereon with the commingled funds of the spouses' separate and community estates. There is still due the state $156 on this tract. Appellant purchased the northwest quarter of said section 14 after this marriage from a son of his former marriage, for which he claimed to have given a water tank and a grey mare belonging to the community estate of his first marriage, the value of this property being $240. Appell...
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