Sloan v. Sloan

• Decision Date: 23 October 1930
• Docket Number: No. 2452.,2452.
• Parties: SLOAN v. SLOAN et al.
• Court: Texas Court of Appeals

32 S.W.2d 513

SLOAN v. SLOAN et al.

No. 2452.

Court of Civil Appeals of Texas. El Paso.

October 23, 1930.

Rehearing Denied November 13, 1930.

Error from District Court, Midland County; Chas. L. Klapproth, Judge.

Suit by Mrs. Josephine Sloan against William H. Sloan and others. To review an adverse judgment, plaintiff brings error. Affirmed.

Minor Moore, of Los Angeles, Cal., and Wright & Yowell and Gibbs & Lewis, both of San Angelo, for plaintiff in error.

Whitaker & Peticolas, of El Paso, and B. Frank Haag, of Midland, for defendants in error.

WALTHALL, J.

Mrs. Josephine Sloan, also known and referred to in the trial of this case as Mrs. Josephine Knight, brought this suit in Midland county, Tex., against William E. Sloan, Ina Belle Hightower and husband, C. C. Hightower, D. V. Smith, S. S. Owen, and Joe H. Smoot, alleging that, before the death of S. A. Sloan, she and S. A. Sloan had entered into a partnership agreement to share equally in everything he thereafter amassed in his business, and that he did thereafter amass the properties involved in this suit for which she sues. Plaintiff also sues in the alternative alleging that, after the making of said partnership agreement, on or about December 24, 1925, plaintiff and S. A. Sloan, entered into the marriage relation in the state of Texas, agreeing to become husband and wife, consummating the agreement by cohabitation, and thereafter living together as husband and wife in pursuance of said agreement, and as a partner of S. A. Sloan, and, in the alternative, as the wife of S. A. Sloan, she sued to recover the properties described. Plaintiff also sues to recover a diamond ring which she alleges she owns in her own right and independent of the other alleged relationships with S. A. Sloan, deceased.

We think a more extended statement of the issues tendered by the pleadings will serve to a clearer understanding of the points at issue. They are substantially as follows:

"That prior to the death of plaintiff's former husband, Mr. Knight, in December, 1923, the said Mr. Knight and Mr. S. A. Sloan, hereinafter mentioned, were associates and partners in the oil business; that during the year following plaintiff advanced at various times several sums of money to the said S. A. Sloan, and in September, 1924, after the said S. A. Sloan, who was then without funds, had called upon a number of friends and relatives in California for money to return to Texas for further engaging in the oil royalty and lease business and had been refused by all of them, he called upon plaintiff for financial assistance and upon her furnishing him with Five Hundred ($500.00) Dollars, at this crisis, he entered into a partnership agreement with plaintiff under which agreement the two were to thereafter share equally in everything he amassed in his business; that with said money, the said S. A. Sloan did return to Texas immediately and engaged in the oil, royalty and lease business and thereafter amassed the small fortune of properties hereinafter specifically described.

"2. That shortly after the making of said partnership agreement, to-wit, on or about December 24, 1925, the said S. A. Sloan and plaintiff being drawn more closely together, entered into the marriage relation in the State of Texas, agreeing to be husband and wife, consummating the agreement by cohabitation, and thereafter living together as husband and wife, in pursuance of said agreement.

"3. That during the existence of said marital relation the said S. A. Sloan and plaintiff accumulated a large community estate, of which the following is a part, to-wit: (Description omitted as not necessary here.)

"An undivided one-half interest in the following described properties of which defendant D. V. Smith, owns the other one-half, to-wit: (Description omitted as not necessary here).

"Also an undivided one-half interest and property right in certain contracts executed November 27, 1928, between S. A. Sloan and D. V. Smith, first parties, and Harry Steinberger and Clyde Steinberger, second parties; and by Amerada Petroleum Corporation, first party, and S. A. Sloan, second party, executed September 13, 1928, and supplemented November 1, 1928; the other one-half interest in said contracts being owned by defendant D. V. Smith; which said contracts are hereto attached, marked Exhibits "A. B. and C." respectively, and made a part hereof for the purposes of describing the properties, and interest of the parties, and for all other proper purposes.

"4. That on or about January 1, 1929, the said S. A. Sloan died intestate in Mitchell County, Texas, and thereupon plaintiff became the owner thereof, as well as of any other property left by the deceased; and, in the alternative, in the event it be found that such property is not community as hereinbefore alleged, plaintiff says that an undivided one-half of all of same belongs to her by virtue of said partnership.

"5. That at the time of his death the said S. A. Sloan had in his possession a diamond ring of the value of Twenty-Five Hundred ($2500.00) Dollars, which was and is the sole and separate property of this plaintiff, but the possession of which the defendants, William H. Sloan and Ina Belle Hightower now hold.

"That the defendants, William H. Sloan, Ina Belle Hightower and Joe H. Smoot, are claiming some right, title or interest in the properties described above as belonging to this plaintiff; that although such claims are without foundation in law, they cast a cloud upon plaintiff's title.

"Wherefore, plaintiff prays that defendants be cited to appear and answer this petition; that on trial hereof plaintiff have judgment against the defendants, William H. Sloan and Ina Belle Hightower and husband, C. C. Hightower, for the title and possession of said diamond ring and of all of said properties alleged above as being the community property of S. A. Sloan, deceased, and this plaintiff, in the alternative, prays that she have judgment against the defendants, William H. Sloan and Ina Belle Hightower and husband, C. C. Hightower, for the title and possession of an undivided one-half interest in and to all properties, of whatsoever kind and wheresoever situated left by the said S. A. Sloan, deceased, for a partition of said properties and the entry of proper orders to that end. In all events, she prays judgment for her costs, for all other and further relief, general and special, in law and equity, to which she may be entitled.

"Attached to the petition was the contract between S. A. Sloan and D. V. Smith on the one part and Messrs. Steinberger on the other part, which is omitted as not being necessary for an understanding of the issues herein involved.

"Defendants answered by general denial, and specially answering denied that the plaintiff and the deceased, S. A. Sloan, ever cohabited or lived together, but alleged that if they ever did cohabit or live together same occurred in the State of California, and not In Texas, and that under the laws of California cohabitation and living together as husband and wife do not, and did not at the time alleged, create the relation of husband and wife.

"Defendants set out in their pleadings, in full, the provisions of the laws of the State of California which clearly render illegal what is commonly and generally known as common law marriage. Among the provisions plead and proven by the defendants were the following (Civ. Code, §§ 55, 68):

"`55. Marriage is a personal relation arising out of a civil contract, to which the consent of parties capable of making that contract is necessary. Consent alone will not constitute marriage; it must be followed by a solemnization authorized by this code.'

"`68. Marriage must be licensed, solemnized, authenticated, and recorded as provided in this article; but non-compliance with its provisions by others than a party to a marriage does not invalidate it.'

"Also those provisions of the Statutes requiring the issuance of a marriage license and due solemnization of the marriage ceremony by an officer, minister or priest and issuance of marriage certificate.

"Defendants further specially plead in their answer as follows:

"Defendants say that the plaintiff and the said S. A. Sloan never were married as required by any of the articles and sections above set out, that no marriage between them was ever solemnized as required by said laws, no license was ever issued, for their marriage by the county clerk of any county in California or elsewhere, no application for any marriage license, was ever made and no notice of intention of marriage was ever given by the plaintiff and the said S. A. Sloan, deceased, or anyone for them, and they were never joined in marriage, and no marriage ceremony was ever solemnized or celebrated as required by said provisions and said laws, before any person authorized by said laws to perform said ceremony, or by anyone else, and that the plaintiff and S. A. Sloan, deceased, did not carry out any of the provisions of said laws hereinabove set out. That ever since the death of her husband, Ray Knight, plaintiff has been a resident citizen of California.

"That if the plaintiff ever did cohabit with the said S. A. Sloan, deceased, which is not admitted, but denied, they did so surreptitiously and secretly, and intermittently and the relation between them was not that of husband and wife, and was never intended to be so, but was a meretricious one; and was never intended to be anything more than such.

"These defendants say that the said S. A. Sloan died intestate in Mitchell County, Texas, on or about January 1st, 1929, leaving as his only heirs at law, his brother and sister, being the defendants, William H. Sloan and Ina Belle Hightower, and that there are no debts and no necessity for administration of the estate. That at the time of his death, he owned and was seized and possessed of all the properties, and the interests in the properties set out in plaintiff's...