Summerville v. King

• Decision Date: 12 December 1904
• Citation: 83 S.W. 680
• Parties: SUMMERVILLE et al. v. KING et al.
• Court: Texas Supreme Court

83 S.W. 680

SUMMERVILLE et al. v.KING et al.

Supreme Court of Texas.

December 12, 1904.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Action by Robert Summerville and others, by their next friend, Johnson Rice, against Jesse King and others.From a judgment in favor of plaintiffs, defendants brought error to the Court of Civil Appeals.From a judgment of the Court of Civil Appeals reversing the judgment (80 S. W. 1050) and remanding the case, plaintiffs bring error.Affirmed, and remanded for final disposition under instruction.

James R. Masterson, for plaintiffs in error.Jacob C. Baldwin, for defendants in error.

BROWN, J.

Johnson Rice, as next friend of the minors Robert, Augusta, and Bessie Summerville, instituted this suit in the district court of Harris county against Jesse King, William H. Olschewski, and the Houston Land & Trust Company to recover an undivided half of the south half of lots 4 and 5, block 21, Castine Addition to the city of Houston, and to establish a homestead right in the entire south half of the said lots.During the pendency of the suit Lillie Moran, the mother of the minors, and who was the wife of Sydney B. Summerville, intervened, setting up that she had been appointed guardian of the estates and of the minor plaintiffs, and adopted the pleadings of the next friend.The defendants appeared, and filed various pleas, but, as there is no question upon the pleadings of either party, it is unnecessary for us to say more than that they were sufficient to admit the evidence.

We copy from the opinion of the Court of Civil Appeals(80 S. W. 1050) as follows:

"The following facts, which we deem essential to a proper understanding of this opinion, are deduced from the statement of facts: In 1889Angelina Rice, the mother of Lillian V. Moran, conveyed to her and her then husband, Sydney B. Summerville, the land in controversy.In 1895 the grantees in that deed entered into a contract with L. R. Jones for the erection of a residence on the land, and to secure him gave 60 notes and a mechanic's lien on the premises for $850.A number of the notes were paid by Summerville.He died in 1897, leaving a considerable portion of the debt unpaid.In 1901 Mrs. Summerville married one Hanks, from whom she procured a divorce in a few months after marriage.While a feme sole, Mrs. Hanks being unable to pay the debt on the premises, H.House, who owned the notes and lien, brought suit to foreclose, when, at the instance of Mrs. Hanks, W. B. Washam took up the notes, and they were transferred to him.By an arrangement between Mrs. Hanks and Washam and Olschewski the latter paid off the debt amounting to $475, and paid taxes and other sums amounting to $75, and Mrs. Hanks conveyed the property to him.Olschewski gave her another parcel of ground as a part of the consideration.The deed was made by her for herself and as survivor of Sydney B. Summerville.Olschewski sold the land to Jesse King, reserving a vendor's lien on the same to secure the purchase money.He indorsed the notes given by King to him to the Houston Land & Trust Company, but has since again become the owner of them.The minors who instituted the suit are the heirs of Sydney B. Summerville.Mrs. Hanks, after her divorce from Hanks, was married to one Moran, from whom she was divorced during the pendency of this suit.After the suit was instituted, Mrs. Moran was appointed guardian of the estate of her minor children herein named, and the county court made an order setting apart to the minors the property in controversy as a homestead.Mrs. Moran intervened in the suit only as the representative of her children, and asked for no relief in her own behalf."

The case was tried by the court without a jury, and judgment was entered in favor of the minors Robert, Augusta, and Bessie Summerville that they recover of the defendants an undivided one-half of the south half of the lot described in the petition, and also that they have the exclusive possession and use of the entire property so long as the county court of Harris county shall permit them to occupy it as a homestead.Judgment was also entered in favor of the defendantJesse King for $190.78 against the minors, with a lien upon the half of the property decreed to them.The judgment contained other provisions not necessary to mention here.The case having been removed by a writ of error to the Court of Civil Appeals in the names of the defendants King, Olschewski and the Houston Land & Trust Company, the defendants in error moved in the Court of Civil Appeals to dismiss the writ of error as to King and the Houston Land & Trust Company, which motion was overruled, and the Court of Civil Appeals reversed the judgment and remanded the case.

The plaintiffs in error claim that they were entitled to a homestead right in the entire property.The mechanic's lien, which was regular, was prior and superior to the homestead claim of the minor children, and the district court erred in decreeing to the minors the right to use the entire property as a homestead.State Const. art. 16, §§ 37,50.The deed from Mrs. Hanks did not convey to Olschewski the undivided one-half interest which her children inherited from their father, and they are entitled to recover half of the land, subject to the directions hereafter given.

It is objected that the deed from Mrs. Hanks to Olschewski was void as to one-half of the improvements as well as one-half of the land, because it is claimed that when the house was built upon the land it ceased to be community property, although paid for with community funds, but became a part of the real estate, and not liable to be sold separately from the land.It has been held that when one of the parties own the entire land upon which improvements were made with community funds, the land could not be taken to compensate for the improvements.Rice v. Rice, 21 Tex. 58.But when improvements are made upon lands in which the husband and wife each have separate interests, the improvements retain their character as community property, and in a division the...