Tittle v. Tittle, A-2063.

• Decision Date: 27 April 1949
• Docket Number: No. A-2063.,A-2063.
• Parties: TITTLE v. TITTLE.
• Court: Texas Supreme Court

220 S.W.2d 637

TITTLE v. TITTLE.

No. A-2063.

Supreme Court of Texas.

April 27, 1949.

Rehearing Denied June 8, 1949.

Certified Question from Court of Civil Appeals of Sixth Supreme Judicial District.

Action by Zephie Moody Tittle against L. A. Tittle for divorce. From the judgment, plaintiff appealed to the Court of Civil Appeals. On certified questions from the Court of Civil Appeals.

One question answered.

Ramey & Ramey, T. J. Ramey, Sellers & Fanning, and Grover Sellers, all of Sulphur Springs, for appellant.

Howard S. Smith, John A. Hicks, and Smith & Hicks, all of Sulphur Springs, for appellee.

SMEDLEY, Justice.

The Court of Civil Appeals has certified for decision two questions of law arising in appellant's suit against appellee for divorce and the adjudication of property rights. The first question is as to the validity and effect of a deed executed by appellee L. A. Tittle, the husband, purporting to convey to L. A. Tittle and appellant, Zephie Tittle, the wife, 342.5 acres of land in Franklin County. The certificate thus sets out the material facts and pleadings in so far as they relate to the deed and the 342.5 acres of land:

"Prior to their marriage on November 15, 1945, Mrs. Tittle owned as her separate estate a 185 acre farm, a small herd of cattle and certain other personal property, and likewise Mr. Tittle owned as his separate estate a 342.5 acre farm, a small herd of cattle and certain other personal property. In January following their marriage they agreed between themselves that all the separate estate of L. A. Tittle would become community property and the cattle and car then owned by her would become community; and all profits thereafter accumulated from any source likewise would become community.

"This agreement later reduced to writing, dated, signed and acknowledged by them on January 5, 1946, reads:

"`Know All Men by These Presents:

"`That this is an agreement and contract entered into on this date between L. A. Tittle and Zephie Tittle as husband and wife.

"`To further combine our individual property into community property, we made the following agreement:

"`(1) L. A. Tittle is to make deed to L. A. and Zephie Tittle to all real estate owned by him individually, and all personal assets, including bank account, as cash shall be considered as of this date to be community property and subject to our needs as husband and wife.

"`(2) As of this date Zephie Tittle agrees to turn over to L. A. Tittle and herself as community property the Ford automobile owned by her, and also all the cattle now owned by her individually, and such other personal assets that she may deem expedient to do. Zephie Tittle, by agreement, is to retain title to her real estate until such time as she may decide to handle it in a different way. However, as the expenses of this land will be cared for by both of us, any revenue derived from such land will become the assets of both of us and used as such.

"`(3) It is also agreed by both of us that should we cease to live together as husband and wife, within five years from this date, as far as is possible we would return to each one his or her individual property. In that case Zephie Tittle would return to L. A. Tittle deeds, or proceeds of said real estate which was personally owned by him. Also L. A. Tittle would return to Zephie Tittle cash value of all personal property originally owned by her.

"`It is also agreed that any profits accumulated from this date regardless of source, will be treated as partnership, and on a 50-50 basis. It is also agreed that since L. A. Tittle owes his father, W. H. Tittle, the sum of $3,000.00 and this debt is assumed by both of us; that should property be returned to each individually, L. A. Tittle agrees to assume any remaining indebtedness of this and also to pay Zephie Tittle her part of any money paid on this indebtedness from our partnership.'

"On January 8, 1946, L. A. Tittle signed and acknowledged a deed of conveyance the portion pertinent to the question of law here involved, reads:

"`Know All Men by These Presents:

"`That I, L. A. Tittle of the County of Franklin, State of Texas, for and in consideration of the sum of One and no/100 ($1.00) Dollars, to me paid Zephie Tittle as follows:

"`$1.00 cash in hand paid receipt of which is hereby acknowledged, and the further consideration for the purpose of converting the hereinafter described land as community property to be owned jointly by the said L. A. Tittle and the said Zephie Tittle, husband and wife, have granted, sold and conveyed, and by these presents do grant, sell and convey unto the said L. A. Tittle and Zephie Tittle of the County of Franklin, State of Texas, all that certain tract or parcel of land situated in the County of Franklin, State of Texas, (here follows description of the 342.5 acre tract).

"`To have and to hold the above described premises, together with all and singular, the rights and appurtenances thereto in anywise belonging unto the said L. A. Tittle and Zephie Tittle, their heirs and assigns forever; and we do hereby bind ourselves, our heirs, executors and administrators, to warrant and forever defend all and singular the said premises unto the said L. A. Tittle and Zephie Tittle, their heirs and assigns, against every person whomsoever lawfully claiming, or to claim the same or any part thereof.'

"In her suit for divorce which was filed on February 4, 1948, well within the five year provision contained in paragraph three of above agreement, she plead that she was the owner as her separate estate of certain properties, and amongst the properties she alleged to be the community estate of herself and husband L. A. Tittle, she included the 342.5 acre tract, describing it as `being the same land described in the deed from L. A. Tittle to L. A. Tittle and Zephie Tittle, dated January 8; 1946, of record in Vol. 63, page 419, Franklin County deed records.' She alleged this 342.5 acres became community property by reason of above deed, and if it should be construed not to be community property under the law, that then she owned an undivided one-half interest in this tract. In an alternate count, she plead the agreement that had been executed by them, alleged that he executed the deed in pursuance of the agreement, and acting upon the strength of both she advanced out of her separate estate to the community certain properties which she itemized. By reason of these alleged advances, she sought an equitable lien on the community in the event the deed should be declared invalid.

"Briefly stated, defendant alleged the 342.5 acres to be his separate estate, prior to the marriage and at all times subsequent; alleged that by virtue of paragraph three of the agreement and the acts of defendant the agreement had been breached and now unenforceable; that the sole consideration and purpose of his execution of the deed was in the effort to convert his separate estate into community; and both instruments were invalid, void and unenforceable; and by reference to the exhibits attached to plaintiff's pleadings, made both instruments a part of the answer. Defendant sought removal of cloud of title on the 342.5 acre tract, cast thereon by reason of the execution and recordation of the instruments. No fraud, accident or mistake was plead by either litigant in the execution of the instrument, and was not raised by any evidence. The deed was executed solely in consideration of and pursuant to the written agreement. Plaintiff introduced in evidence both instruments."

The first of the two certified questions is:

"Under the pleadings and evidence above set out, did the trial court err in decreeing the deed hereinabove set out to be `void and of no force and effect whatsoever' by virtue of the holding in Kellett v. Trice, 95 Tex. 160, 66 S.W. 51?"

As indicated by the statement of the pleadings, the position taken by appellee is that the contract and the deed are void and of no effect because they merely evidence an effort on the part of the husband and wife by agreement to convert separate property into community property; while appellant contends that by reason of the deed the 342.5 acres of land became community property, and that the deed, if ineffective to accomplish that, conveyed to her an undivided one-half interest in the land.

We have reached the conclusion that the Court of Civil Appeals in its tentative opinion and the trial court in its judgment correctly decided that the question as to the validity and effect of the deed is determined by Kellett v. Trice, 95 Tex. 160, 66 S.W. 51. There is striking similarity in the facts and the instruments involved in that case and those in this case. In our opinion, the rules and principles announced in that case, when applied to the facts set out in the certificate herein and the instruments executed by the parties, compel the conclusion that the transaction did not change from separate to community the property described in the deed, and that the deed did not convey to the wife an interest in the land.

In the Kellett case the husband and wife joined in the execution of a deed conveying and transferring to a trustee several parcels of land and 130 shares of stock owned by the wife as her separate property, and also 108 shares of stock which were community property. The deed recited as its consideration and purpose "one dollar from each to the other paid, and for the purpose of divesting the separate estate and title of us and each of us in and to the property (hereinafter described) in which each of us shall hereafter own, hold, have and enjoy an equal undivided community interest, to the end that all of the same may stand and be as all other property now owned by us, viz., community property, regardless of in whose name the title thereto may stand, * * * and all increase, profit and income of every kind whatsoever from said property hereinafter described shall be and become after this date...