Skinner v. Vaughan

• Decision Date: 27 March 1941
• Docket Number: No. 4051.,4051.
• Citation: 150 S.W.2d 260
• Parties: SKINNER et al. v. VAUGHAN et al.
• Court: Texas Court of Appeals

Page 260

150 S.W.2d 260

SKINNER et al. v. VAUGHAN et al.

No. 4051.

Court of Civil Appeals of Texas. El Paso.

March 27, 1941.

Rehearing Denied April 24, 1941.

Appeal from District Court, Nueces County; W. B. Hopkins, Judge.

Action by Opal Vaughan and others against Clifford W. Skinner and others, for interests in certain lots, sale thereof, and partition of the proceeds. From the judgment rendered, defendants appeal.

Reversed and remanded.

G. G. Hazel and Wolfe & Massie, all of Corpus Christi, and Hazel & Ruhmann, of Alice, for appellants.

Sidney P. Chandler, of Corpus Christi, for appellees.

PRICE, Chief Justice.

This is an appeal from the District Court of Nueces County. As plaintiffs, Opal, Harold, Vernon and Paul Vaughan recovered a judgment against Roberta Harper, Loura R. Blair and Clifford Skinner as defendants, decreeing to plaintiffs each an undivided one-eighth interest in certain lots in Chamberlain Addition to the City of Corpus Christi; to the defendants Loura R. Blair, Roberta Harper, and Clifford Skinner, an undivided one-sixth interest each in said property; ordering the property sold, adjudging to plaintiffs a lien on the proceeds of the sale of the interest adjudged to the defendants in the sum of $762.50; order of partition of the proceeds of the sale among the parties in accordance with their respective interests. From this judgment the defendants last named have perfected this appeal.

The trial petition of plaintiffs alleged in substance that they were the children of Roy Vaughan, deceased, the grandchildren of C. T. Vaughan; that their father, Roy Vaughan, was the only child of C. T. Vaughan and his first wife, Elnora Brake Vaughan; that C. T. Vaughan died intestate in 1928; there was no administration on his estate; that at the time of his death he and Sylvia Vaughan, now deceased, owned as community property the property in controversy here; that their father predeceased C. T. Vaughan, and that they, as the grandchildren of said C. T. Vaughan, inherited his one-half interest in the property. Plaintiffs likewise sought to recover the rental value of their alleged one-half interest in the property in controversy; that defendants claimed the property through the will of Sylvia Vaughan, deceased.

Defendants urged general and special exceptions to plaintiffs' petition, then set up specially that the property in controversy was the separate property of Sylvia Vaughan; that by her will she devised same to defendants Roberta Harper and W. C. Skinner, and the title vested in them under said will; that W. C. Skinner is dead, and his interest is now vested in defendants Loura Blair and Clifford Skinner. Defendants further set up expenditures of certain sums of money in the payment of taxes and for the upkeep of same, and pray, in the event of recovery of rent by plaintiffs, that such items be offset against the rents. This special pleading is followed by general denial.

The trial was to the court, submission on special issues. The court, on motion of the plaintiffs, set aside the finding of the jury on certain of the issues relating to offsets claimed by defendants, and on the verdict entered the judgment above outlined.

This is the second appeal of this case. Skinner v. Vaughan, 103 S.W.2d 454. In that case the San Antonio Court of Civil Appeals reversed and remanded a judgment which was founded on an instructed verdict in favor of the plaintiffs. The basis of the reversal was that it was an issuable fact as to plaintiffs being the heirs of C. T. Vaughan. The action of the trial court in excluding testimony relative to a transaction between Roberta Harper and Mrs. Sylvia Vaughan was approved, the holding being that the testimony as to the transaction came within the prohibition of Article 3716, R.C.S. In connection with this ruling, however, it is stated in the opinion that the court was not passing on the question of the advisability or necessity of the suit being brought against W. C. Skinner in his capacity of executor of the estate of Sylvia Vaughan, deceased.

This trial was upon plaintiffs' third amended original petition. Probably not the pleading before the court on the former appeal.

In the former appeal W. C. Skinner, in his individual capacity and as executor of the estate of Sylvia Vaughan, was a party. In this appeal he is not a party, either individually or as executor. His interest is represented by his heirs, Mrs. Loura Blair and Clifford Skinner.

No heir or legal representative of Sylvia Vaughan is now a party hereto. Cook v. Baker, Tex.Com.App., 45 S.W.2d 161.

As to whether the plaintiffs are the same, we have no means of knowing. Defendants, by way of special exception preceded by a general demurrer, say that Opal Vaughan, one of the plaintiffs, is a married woman, being the wife of Cresco Palma House, who is still living in Chaffee, Missouri. This is a speaking demurrer. It is not sworn to, and the question of the capacity of Opal Vaughan to appear as plaintiff is not legally raised thereby.

Plaintiffs' petition was not subject to the general exception urged by the defendants.

There were in reality but two controlling issues involved in the case. The first of these was as to whether or not the plaintiffs were the grandchildren of the C. T. Vaughan who was the husband of Sylvia Vaughan at the time the property in controversy was conveyed to Sylvia Vaughan; second, as to whether the property was the community property of C. T. Vaughan and his wife, Sylvia Vaughan, or the separate property of Sylvia Vaughan.

The first issue was solved by the jury in favor of plaintiffs. We hold that the evidence is sufficient to support this finding.

The second issue as to the status of the property was not submitted to the jury. It was found, as a matter of law, by the court to be community property.

There is error charged as to the exclusion of evidence bearing upon the issue of heirship. However, we shall first consider the question as to the status of the property in controversy.

Defendant Roberta Harper, then Roberta Whitlock, executed and delivered to Mrs. Sylvia Vaughan a deed purporting to convey to said Mrs. Vaughan part of the property in controversy. The consideration recited in this deed was two hundred dollars, eighty dollars cash, the receipt of which was acknowledged, and a promissory note in the sum of one hundred and twenty dollars, due on the 25th day of April, 1909, recited to have been executed by Sylvia Vaughan. This deed is dated "this 26th day of _____, 1907." It purports to have been acknowledged by Roberta Whitlock on the 26th day of April, 1907. It was filed for record on the 2nd day of December, 1909. On the 25th day of April, 1907 Roberta Whitlock executed and delivered to Mrs. Sylvia Vaughan a deed purporting to convey to her the other portion of the premises in controversy. The consideration recited in the deed was three hundred dollars cash, the receipt of which was acknowledged. On the 10th day of June, 1909, Roberta Whitlock, now Roberta Harper, executed and delivered to Mrs. Sylvia Vaughan a release of the vendor's lien securing the one hundred and twenty dollar vendor's lien note heretofore mentioned, wherein she acknowledged the payment of said note and released the vendor's lien. On the date of the execution of the above instruments by Roberta Whitlock, C. T. Vaughan and Sylvia Vaughan were husband and wife. The deeds contain no recitals indicating that the property was to be the separate property of Mrs. Vaughan, or that same was paid for or contemplated to be paid for out of her separate estate. There was no recitation that same was a gift to her from her sister, Roberta Whitlock.

It is elementary that the property was presumed, from the face of the instruments conveying the property, to be community property.

Defendants pleaded that the property involved was a gift to Sylvia Vaughan and intended and conveyed to her to be a part of her separate and individual property and estate. In support of their contention that the property was a gift from defendant Roberta Harper, then Whitlock, defendants offered the testimony of Roberta Harper and Mrs. M. J. Hearn. Mrs. Hearn, as well as Mrs. Harper, was a party defendant to the litigation, but Mrs. Hearn had theretofore disclaimed any interest in and to the property. The evidence of Mrs. Harper and Mrs. Hearn related to what took place at the time the deeds executed by Mrs. Harper to Mrs. Vaughan were delivered. It seems, according to the testimony tendered, that present at the time were C. T. Vaughan and his wife, Sylvia Vaughan, Roberta Harper, then Whitlock, W. C. Skinner and his wife, now Mrs. M. J. Hearn, and perhaps others. The general purpose and tenor of this testimony was that the three hundred dollars recited in one of the deeds from Roberta Whitlock to Mrs. Vaughan was never paid. It was understood between Roberta Whitlock and Mrs. Vaughan that same was never to be paid and the property was a gift from Roberta Whitlock to Mrs. Vaughan. Most of the testimony related to statements made by Roberta Whitlock to Mrs. Vaughan and declarations by Mrs. Whitlock. In regard to the deed wherein the consideration was eighty dollars cash and the note for one hundred and twenty dollars, that the eighty dollars was never paid nor contemplated to be paid, and the note was never intended to be paid; that the recited consideration was placed in the deeds upon the insistence of Mrs. Vaughan. Mrs. Vaughan stating that Mrs. Whitlock had minor children, and that the recital as to a gift might cause difficulty in the future; furthermore, that if she desired to dispose of the property in the future, a recited consideration might be of advantage.

When the testimony of Mrs. Hearn was tendered the plaintiffs objected thereto. The objection was somewhat involved and is not entirely clear to us. It was as follows: "Your Honor please, I am going to object to any character of testimony with reference to...