Sykes v. Speer

• Decision Date: 04 June 1908
• Citation: 112 S.W. 422
• Parties: SYKES v. SPEER et al.
• Court: Texas Court of Appeals

Page 422

112 S.W. 422

SYKES v. SPEER et al.

Court of Civil Appeals of Texas.

June 4, 1908.

Rehearing Denied June 25, 1908.

Appeal from District Court, Upshur County; R. W. Simpson, Judge.

Action by H. E. Speer and another against J. D. Sykes. From a judgment for plaintiffs, defendant appeals. Reversed and remanded.

Hart & Hart for appellant. Barnwell & Eberhart, for appellees.

HODGES, J.

This is a suit instituted by the appellees, Speer and Goodnight, in the district court of Upshur county, to recover of the appellant, Sykes, a tract of 160 acres of land. The appellees alleged that the land formerly belonged to J. D. Sykes and his wife, Sallie Sykes; that on the 3d day of April, 1903, Sallie Sykes sued her husband, J. D. Sykes, for a divorce, for damages for personal injuries alleged to have been inflicted by Sykes upon her, for the partition of their community property, and the custody of their five children; that on the 13th day of January, 1904, a judgment was rendered in favor of Sallie Sykes in all respects as prayed for, granting her the divorce, awarding her a personal judgment against Sykes for $500 for the personal injuries, giving her the exclusive custody of the children, adjudging that the homestead (consisting of the 160 acres of land here sued for) was the community property of Sykes and his wife, and that each was entitled to an undivided one-half interest, but awarding to Mrs. Sykes the exclusive possession of the entire tract during the minority of the children. It is further alleged that that judgment still remains in full force and effect, and upon it was issued an execution for the sum of $500 and costs, amounting to $40.95, on the 29th day of February, 1904; that this execution was placed in the hands of the sheriff of Upshur county, and by him a levy was made upon the undivided interest of J. D. Sykes in the 160 acres of land; that the land was advertised and sold under the execution on the 5th day of April, 1904, and was purchased by Mrs. Sykes for the sum of $300, and a deed was made to her by the sheriff. It was also alleged that on the 5th day of April a writ of possession was issued in favor of Sallie Sykes, on the 27th of February, 1904, delivered to the sheriff of Upshur county, and executed by him on March 5, 1904, by causing Sykes to move from the premises and placing Sallie Sykes in possession; that in October, 1904, Sallie Sykes sold and conveyed the 160 acres of land to the appellees herein by a warranty deed, receiving therefor $1,000. Plaintiffs alleged that unless restrained Sykes would forcibly enter on the land and cut and remove the timber therefrom, that he was threatening and preparing to do the acts complained of, and that he would convert the property to his own use and benefit. They further alleged that he was now on the property, and was cutting and removing the timber and otherwise damaging the property, and refused to leave when directed to do so by any officer of the court. They prayed for a writ of injunction against Sykes restraining him from in any way interfering with their possession of the property, from cutting and removing timber, and from committing any acts of trespass or damage upon the land, and that they be quieted in the title and possession of the property. To this petition was attached a copy of the judgment and decree which had theretofore been rendered in the divorce suit between Sykes and his wife.

Sykes answered, disclaiming any interest in half of the land described in the plaintiff's petition, and alleged that he was the owner of the other half. He pleaded not guilty, and especially that he was the father of five minor children, who were living with him at the time, and that they had been living with him since the 1st day of January, 1903; that he had supported all of said children during all of that time since the 1st day of January, 1903, up to the present time, and was still maintaining and supporting them and intended to continue doing so as long as they were minors; that the land described in the plaintiff's petition was his homestead on the 1st day of January, 1903, and long prior thereto, and that it had been his homestead all the time since and is still such; that he had been living upon the land during all of said time, with his children, maintaining and supporting them by the produce raised upon the land; that he owned no other land and had never owned any land since the 1st day of January, 1903, except that involved in this suit. He further answered attacking the validity of the judgment recovered against him for the sum of $500 for personal injuries. He prayed for judgment for half of the land in controversy, and that the same be partitioned and divided between him and the defendants. The case was tried before the court without a jury, and a judgment rendered awarding a recovery in favor of the appellees, plaintiffs in the court below, for the entire 160 acres of land. Findings of fact and conclusions of law were filed by the trial judge, but for reasons stated were not filed till after the adjournment of the term of court at which the case was tried. While the date of the filing shows that it was made on the last day of the term, yet it affirmatively appears from the certificates of the judge that this was the result of a filing back, and is not the true date. For this reason the findings of the trial judge cannot be considered on this appeal, and we shall consider the facts contained in the record, as if no such findings had been made.

The facts are practically uncontradicted, and show that J. D. Sykes and Sallie Sykes were husband and wife, as alleged in the petition of the plaintiffs herein; that such a suit was filed by Mrs. Sykes against her husband for divorce during the latter part of 1903; that at the first term thereafter Sykes appeared, and at his instance the case was continued; that at the next succeeding term she recovered a judgment against him in all things substantially as she had prayed for. She was granted a divorce, given the exclusive custody of the children during their minority, was given a judgment for the sum of $500 for personal injuries inflicted by Sykes upon her while they were husband and wife, and all costs of suit were adjudged against Sykes. The judgment also decreed that the tract of land here involved was the community property of Sykes and his wife, and that each was entitled to an undivided one-half interest therein, but directed that Mrs. Sykes should have the possession of the entire tract during the minority of the children. The testimony further shows that this was the only tract of land which Sykes owned subsequent to the 1st day of January, 1903; that at the time of the institution of the divorce suit he and his wife and family were residing upon the tract as their homestead, and that after the divorce proceedings were instituted Sykes continued to reside thereon with his children until he was dispossessed by the sheriff on the 5th day of March, 1904, by virtue of a writ of possession issued upon the judgment of divorce; that after being so dispossessed he moved onto another farm belonging to another person, about three miles distant, and remained there until about the 1st of December following, at which time he returned to his old home with his children and was residing there at the time this suit was instituted. It is also shown beyond any controversy that notwithstanding Mrs. Sykes had been awarded the custody of the children by the decree of divorce, she had never made any demand on Sykes for the children, nor made any effort to acquire their actual custody from him, and had never contributed anything toward their support. In fact, the record justifies the conclusion that she had taken practically no interest in the children after the decree of divorce had been granted; that during all the time from the separation between Sykes and his wife the children remained with their father, apparently from choice, and that he supported, cared for, and maintained them during that time.

On the 7th day of March, 1904, the second day after Sykes had been dispossessed of the premises by the sheriff under the writ of possession, the sheriff levied a writ of execution upon the property, issued by virtue of the judgment rendered against Sykes, for $500 for damages in favor of his wife and $40.95 costs of court in the divorce proceedings. Under this execution the property was sold on the 5th day of April following, and was purchased by Mrs. Sykes, her bid being $300. She paid the costs of suit; the remainder was credited upon the judgment in her favor against Sykes; and she received a deed to the entire premises from the sheriff. In October following, while Sykes was still absent from the 160-acre tract, Mrs. Sykes conveyed the property to the appellees herein, they having purchased from her for the sum of $1,000, which the testimony shows was paid partly in cash and the remainder in a note which she subsequently negotiated and received the money for. Speer and Goodnight did not know at the time of their purchase of the divorce proceedings between Sykes and his wife, and knew none of the enumerated facts antedating their purchase, but the purchase was negotiated by Dr. Holland, who was at the time the father-in-law of the appellee Speer. Dr. Holland was fully cognizant of all the facts concerning the controversy between Sykes and his wife, their separation and divorce, and their status afterwards. The record fails to show whether Mrs. Sykes ever in fact actually resided on the 160 acres after the possession had been awarded to her—in fact, we infer that she did not, but that she had a tenant upon the premises, or a portion of it.

The first two assignments of error attack the validity of the judgment for personal injuries rendered in favor of Mrs. Sykes against her husband in the divorce suit, and charge that the execution issued by virtue of that judgment was void and that no valid...