Smalley v. Paine

• Decision Date: 26 January 1910
• Citation: 130 S.W. 739
• Parties: SMALLEY et al. v. PAINE et al.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

Page 739

130 S.W. 739

SMALLEY et al. v. PAINE et al.^†

Court of Civil Appeals of Texas.

January 26, 1910.

On Motion for Rehearing, May 18, 1910.

Appeal from District Court, Williamson County; C. A. Wilcox, Judge.

Action by Mrs. M. E. Smalley and another against Freeman Paine and others. From a judgment granting insufficient relief, plaintiffs appeal. Affirmed on rehearing.

W. K. Makemson and Nunn & Hudson, for appellants. F. M. Newman, Cooper Sansom, Blain & Howth, Wilcox & Graves, and F. D. Love, for appellees.

RICE, J.

This suit was filed October 6, 1907, by appellant Mrs. M. E. Smalley, joined pro forma by her husband, F. J. Smalley, against appellees, who were the children of Mrs. Louisa Maria Ellen Shannon by a former husband, to recover a tract of land in Williamson county, consisting of 147 acres out of the Winslow Turner one-fourth league, on the round that the same was held in trust by the said Mrs. Shannon for appellant. It was alleged that on the 5th of September, 1852, Moses W. Smalley was married to Louisa Maria Ellen Freeman, and that at and before his marriage he owned as his separate property 140 acres of land out of the Holder survey in said county, upon which he and his wife thereafter continuously resided as their homestead till his death on the 6th of August, 1857; that Mrs. M. E. Smalley, appellant, was the only child of said marriage, and as such heir inherited said tract of land; that after Moses Smalley's death his widow intermarried with one Wash Hale on the 8th of May, 1858, who thereafter died, and that after his death she married Joseph M. Paine, by whom she had the following children, to wit, Freeman Paine, Kizzie Paine, now Kizzie Renvekamp, John Paine, and Deane Paine, now Mrs. Deane Green, the appellees herein; that the said Joseph M. Paine afterwards died, and his widow, the said Louisa Maria Ellen, married D. C. Shannon, with whom she lived until her death on the 22d day of May, 1905, and that said Shannon died on the 22d day of December next thereafter; that on the 10th of November, 1868, said Louisa Maria Ellen, joined by her then husband, J. M. Paine, sold and attempted to convey to Nelson Merrill an undivided one-half interest in said 140-acre tract of land out of the Holder survey for $700, and that at the time of said transaction the said Louisa Maria Ellen recognized said tract of land as the property of appellant, expressly agreeing with and promising appellant that she would invest said $700 so received from the proceeds of the sale of said land, which she regarded as the separate property of appellant, in a tract of land to be used as a home during her lifetime, and hold the same in trust for appellant, and that on the said day and in performance of said agreement the said Louisa Maria Ellen purchased a tract of land from Hanley and wife out of the Dillard survey, paying therefor $500 out of said $700, and taking a conveyance in her own name therefor, and occupied the same as a homestead for herself and family until about the 10th of February, 1872, when she, joined by her then husband, J. M. Paine, sold and conveyed said last-named tract to James Adams for the sum of $500, and afterwards, on the same day, purchased from said Adams a tract of land out of the Damen league in said county, paying therefor the money she received from the sale to Adams, taking a conveyance to said land in her own name, and that thereafter, on the 15th of February, 1872, she sold said land to one Pugh for the sum of $1,000, and on the same day she purchased from one Randall another tract of land out of the Damen league paying therefor the sum of $800, a part of the proceeds of the sale last aforesaid, taking a deed thereto in her own name, which last tract she and her family continued to use and occupy until the 13th of January, 1879, when she traded the same to one Buttery for 480 acres of land in Travis county, the title to which was likewise taken in her own name, and that afterwards, to wit, on the 9th of November, 1886, the said Louisa Maria Ellen Shannon traded to one Hallenbeck the Buttery tract for 147 acres of land in Williamson county out of the Winslow Turner one-fourth league, being the land in controversy herein, and also taking the deed thereto in her own name. It was further alleged that plaintiff was married on the 15th of September, 1869, and that thereafter, on the 29th of December, 1869, she, joined by her husband, conveyed to Nelson Merrill her interest in her father's 140-acre tract in part consideration of $700, and the further consideration of the agreement and understanding previously had with her mother when she sold the Holder tract to Merrill and purchased the Hanley tract, to the effect that she recognized the money so arising from said sale as plaintiff's separate property, and would invest the same in the Hanley tract in trust for her; that her mother, in pursuance of said agreement with plaintiff, as aforesaid, continuously recognized her right to each of said several tracts of land afterwards purchased by her, and the same were each so held by her mother for her, and that she, plaintiff, permitted her mother to use and occupy each of said tracts as a home; that after the purchase of the last tract of land by the said Louisa Maria Ellen Shannon her husband and herself moved upon the same and continued to occupy the same until about a year before her death, when she and her husband, becoming helpless from old age and sickness, were removed to plaintiff's home and cared for by her until her death; that during an the time that her mother, the said Louisa Maria Ellen, occupied the same, she regarded said lands as the property of plaintiffs, only claiming the right to use the same during her life; that, when she removed to plaintiff's home, they surrendered possession of said land to plaintiff, during which time plaintiff accounted to them for rent; that by reason of the facts set forth plaintiff was the equitable owner of said tract of land, to which defendants were making some pretended claim, which claim, together with the outstanding deed thereto in the name of the said Louisa Maria Ellen Shannon, constituted a cloud upon plaintiff's chain of title, depreciating the value thereof, concluding with prayer for judgment for said land and for decree canceling the Hallenbeck deed and quieting title thereto in plaintiff.

Certain of the children of D. C. Shannon intervened in this suit, while others of them were made defendants, interveners claiming an interest in the property sued for upon the alleged ground, among other things, that their father, D. C. Shannon, had invested $1,500 in said land, and had erected thereon certain valuable improvements. But as some of them disclaimed any interest therein, and as judgment went against all of them, none of whom are complaining or appealing herein, it will therefore be unnecessary to further notice this branch of the case.

The original defendants, who were the Paines, answered by general and special demurrers, by general denial, and pleaded specially that said 140-acre tract of the Holder survey was not the separate property of Moses Smalley, but the community property of himself and his said wife Louisa Maria Ellen, thereafter Mrs. Shannon; that the land sued for was the separate property of the said Louisa Maria Ellen, and that the plaintiffs and defendants owned an undivided one-fifth interest therein. They likewise pleaded the statute of two, three, five, and ten years' limitation.

The case was tried before the court without a jury, and judgment was rendered that the interveners and the other Shannon heirs made defendants take nothing by their suit, but that plaintiffs and the other defendants, the Paine heirs, were each entitled to an undivided one-fifth interest in said land, and likewise an undivided one-fifth interest in the rents which had accrued therefrom, and ordered a partition in accordance therewith, from which judgment this appeal is prosecuted.

Appellant presents and asks a reversal on a number of assignments of errors, but in our judgment it will only be necessary to consider those which question the correctness of the judgment of the court on the ground of its failure to find that there was an express trust ingrafted upon the land in controversy in favor of appellant, wherefore judgment should have been rendered for her for all of said land, instead of only an undivided one-fifth interest therein. We think the findings of the court sustained and supplemented by the evidence in the record disclose that the 140-acre tract of land out of the Holder survey was the separate property of Moses W. Smalley at the time of and prior to his marriage, and that the same, therefore, belonged at his death by inheritance to appellant, subject to a life estate in a one-third thereof in favor of his wife, the mother of appellant. The evidence in our judgment further shows that prior to the sale of said tract of land by the said Louisa Maria Ellen and the purchase of the Hanley tract she understood and recognized the same to be the separate property of her husband, and intended at the time she sold the same and purchased the Hanley tract to hold it in trust for her daughter, appellant herein, and that each succeeding sale and purchase of the several tracts of land was with the funds arising from the sale of the first tract, and was intended by her, as shown by her repeated declarations, to be held by her in trust for her said daughter.

We are further of the opinion that the evidence is sufficient to support the finding of the court to the effect that the deed from appellant and her husband to Merrill, made soon after their marriage, conveying to him all of her interest in the Holder survey, was executed partly on account of the declared and express intention of her mother that she would hold the Hanley tract in trust for her, and was therefore intended as a ratification of her mother's deed to Merrill, as...