Stephens v. Stephens

• Decision Date: 23 February 1927
• Docket Number: (No. 2760.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 292 S.W. 290
• Parties: STEPHENS v. STEPHENS.
• Court: Texas Court of Appeals

292 S.W. 290

STEPHENS v. STEPHENS.

(No. 2760.)^*

Court of Civil Appeals of Texas. Amarillo.

February 23, 1927.

Rehearing Denied March 16, 1927.

Appeal from District Court, Wilbarger County; P. A. Martin, Judge.

Suit by W. H. Stephens against Lucy E. Robertson Stephens, who filed a cross-action. From a judgment for plaintiff in part, defendant appeals. Affirmed.

Warlick & Poteet, of Vernon, Bullington, Boone, Humphrey & King, H. O. Williams, and J. A. Lantz, all of Wichita Falls, for appellant.

Weeks, Morrow, Francis & Hankerson, of Wichita Falls, and Cook, Cook & Donaghey, of Vernon, for appellee.

JACKSON, J.

This suit was instituted in the district court of Wilbarger county, Tex., by the appellee, W. H. Stephens, to secure a divorce on the grounds of cruelty from the appellant, Lucy E. Robertson Stephens, and to obtain a judgment decreeing certain property hereinafter described to be his separate property.

The appellant answered by general and special denials, set up a cross-action for divorce from appellee, and sought a decree adjudging the property involved in this appeal to be the community property of herself and appellee, and asked for a recovery of a one-half interest therein.

The record discloses that the suit was filed on October 8, 1924, and in April, 1925, the trial court entered a judgment for divorce, from which an appeal was taken and the judgment reversed. 281 S. W. 1096. While the appeal from that judgment was pending, the appellee paid to appellant $4,000, for which she executed a deed in settlement of her interest in the community property. On a retrial of the case, the court below set aside the settlement made while the first appeal was pending, in which the appellant received $4,000, but allowed her to retain said sum as the evidence disclosed that some money, largely from crops, had accumulated during the marriage which belonged to the community estate of appellant and appellee, and in conformity to the answers of the jury to certain special issues submitted, rendered judgment granting appellee a divorce from appellant upon the grounds of cruelty. The $4,000 so allowed constituted no part of the property involved in this appeal, and from the judgment allowing the appellant said sum, and granting the appellee a divorce, no appeal was prosecuted.

At the time of his marriage on February 10, 1921, with appellant, who was his second wife, appellee was over 70 years old, and she was near the same age, and when married the appellant owned a 200-acre farm and a residence in town, and they lived together one year and separated.

Appellee and his first wife, who died in 1914, acquired, in May, 1906, the north one-half of section 83, block 14, H. & G. C. Railway survey in Wilbarger county, Tex., containing 320 acres of land. On February 10, 1921, the date of the marriage between appellant and appellee, he owned as his separate property an undivided one-half interest in said land, and the children of himself and his first wife owned the other undivided one-half interest therein.

After the marriage with appellant, appellee and the children of himself and the first Mrs. Stephens, for and in consideration of $1 and the covenants and agreements on the part of lessees to be paid, kept, and performed, granted, demised, leased, and let the above-described land to such lessees for the sole and only purpose of mining and operating for oil and gas, laying pipe lines, building tanks, power stations, and structures thereon, to produce, save, and take care of such products. The lease contracts stipulate for the commencement of the drilling of wells on the land within a certain time, recite that the lease shall remain in full force for a stipulated time and so long thereafter as oil or gas, or either of them, is produced from said premises, and provide:

"In consideration of the premises, the said lessee covenants and agrees, first, to deliver to the credit of the lessor, free of cost, to the pipe line to which he may connect his wells, the equal one-eighth part of the oil produced and saved from the leased premises."

The other provisions of the leases are not essential to a consideration of the case.

The parties to whom the land was leased, in compliance with the provisions of their contracts, found and produced oil from the premises, and delivered into the pipe lines to which the wells were connected, to the credit of the appellee, his one-eighth thereof, for which he received $24,039.72 in the year 1924, $75,979.33 from January 1, 1925, to September 1st of that year, and $106,655.64 from September 1, 1925, to June 1, 1926. The district court held that the oil placed in the pipe lines by the lessee, in compliance with the lease contracts, to the credit of appellee, was his separate property, and the money received by him therefor belonged to his separate estate, and not to the community estate of appellee and appellant, and therefore she was not entitled to any part thereof. The part of the judgment holding that such oil and the proceeds thereof were the separate property of appellee, and that appellant had no community interest therein, is challenged as error, and presents the only question involved in this appeal.

The attorneys have cited no case, and in our investigation we have found none, in which the precise question here presented is decided. In this state, the property rights of the husband and wife are not controlled by the common law. Barkley v. Dumke et al., 99 Tex. 150, 87 S. W. 1147. The Spanish ganancial system is the basis of, and, with some modifications, constitutes our community law system, and determines the separate property rights and the community property rights of the spouses. Partis v. Parker, 22 Tex. 700.

"Ganancial property is that which the husband and wife, living together, acquire during matrimony, by a common title, lucrative or onerous, or those which husband and wife or either acquire by purchase, or by their labor and industry, as also the fruits (frutos) of the separate property which each brings to the matrimony or acquires by lucrative title during the continuance of the partnership." Cartwright v. Cartwright, 18 Tex. 626.

"The connubial partnership from which the community estate results is founded upon the principles of exact equality and justice as to property rights of the spouse." Schmidt v. Huppmann, 73 Tex. 112, 11 S. W. 175.

On February 10, 1921, the date of the marriage between appellee and appellant, the law of 1917 (Laws 1917, c. 194), providing that the rents and revenues from the separate land from either spouse should be separate property, had been passed. This law, and the 1921 amendment thereto (Laws 1921, c. 130), on the account of the insufficiency of the caption to the bill, were held invalid. It was also held unconstitutional as to the wife's separate estate, as her separate property rights could neither be increased nor diminished because defined and fixed by section 15, art. 16, of the Constitution of the state. Arnold v. Leonard, 114 Tex. 535, 273 S. W. 799.

The Constitution does not define the separate rights of the husband. The 1925 Compiled Statutes of Texas, art. 4613, adopted by the Legislature, re-enacted the provision making the rents and revenues from the husband's separate land the separate property of the husband, and, in our opinion, cures the defective caption to the bill. Constitution, art. 3, § 43; American Indemnity Co. v. City of Austin, 112 Tex. 239, 246 S. W. 1019; section 22, Final Title, 1925 Statutes. The record reveals that a large part of the oil delivered in the pipe lines to the credit of appellee, and for which he received pay, occurred after article 4613 of the 1925 Statutes became effective, but, in the view we take of the case, all the funds in controversy should be disposed of under the same rules.

It is held in this state that crops grown on the separate land of the wife, with her separate labor, are community property (De Blane v. Lynch, 23 Tex. 25; Forbes v. Dunham, 24 Tex. 611; Cleveland v. Cole, 65 Tex. 402); that from timber procured from the separate land of the wife, lumber sawed at her separate mill, by the labor of slaves, also belonging to her separate estate, is community property (White v. Lynch, 26 Tex. 195); that brick made on separate land of the wife, without attention from the husband, is community property (Craxton v. Ryan, 3 Willson, Civ. Cas. Ct. App. § 367); that an obligation given to the husband for timber on the wife's separate land, payable to him in lumber, is community property (Holland v. Seward, 1 White & W. Civ. Cas. Ct. App. § 944).

On these and similar cases the appellant contends that, although the land was unquestionably the separate property of appellee, the leasing thereof, the discovery of oil thereon by the lessees, and the delivery by the lessees to the credit of appellee in the pipe lines his one-eighth of such oil while he was married to appellant, made the oil so received by him community property, and appellant entitled to a one-half interest in the proceeds thereof.

In De Blane v. Lynch, supra, the court said:

"The principle which lies at the foundation of the whole system of community property is that whatever is acquired by the joint efforts of the husband and wife shall be their common property."

Based on this announcement of the law, the court continues:

"If a crop is made by the labor of the wife's slaves on the wife's land, it is community property, because the law presumes that the husband's skill or care contributed to its production, or that he, in some other way, contributed to the common acquisitions."

In Cleveland v. Cole, supra, the court held that the crops grown upon the lands of the wife, with her labor and means, were community property, because:

"It" (the property) "was acquired during the marriage, and was as much the acquests and gains of the marital partnership as if she had received it in exchange for labor with her needle, or...