Toler v. Fertitta, 1735-6166.

• Decision Date: 24 January 1934
• Docket Number: No. 1735-6166.,1735-6166.
• Parties: TOLER et al. v. FERTITTA.
• Court: Texas Supreme Court

67 S.W.2d 229

TOLER et al. v. FERTITTA.

No. 1735-6166.

Commission of Appeals of Texas, Section A.

January 24, 1934.

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

Suit by Sam Fertitta against Mrs. Maud Toler and husband. Judgment for defendants was affirmed in part and reversed in part and rendered in part by the Court of Civil Appeals [43 S.W.(2d) 467], and defendants bring error.

Judgment of the Court of Civil Appeals reversed, and that of the district court affirmed.

A. L. Shaw, of Beaumont, for plaintiffs in error.

Howth, Adams & Hart and Elton Cruse, all of Beaumont, for defendant in error.

CRITZ, Judge.

This suit was filed in the district court of Jefferson county, Tex., by Sam Fertitta against Maud Toler and her husband, Walter Toler. The petition in the district court was in statutory form of trespass to try title to lot 8, in block 1, Bettie J. addition to the city of Beaumont in Jefferson county, Tex. The defendant answered by plea of not guilty. Trial in the district court, where the case was submitted to a jury on special issues, resulted in a verdict and judgment for the Tolers. On appeal to the Court of Civil Appeals by Fertitta, that court affirmed the judgment of the trial court in part, and reversed and rendered it in part. In effect, the judgment of the Court of Civil Appeals awarded Sam Fertitta and Mrs. Toler each an undivided one-half interest in the lot in question. The judgment of the Court of Civil Appeals also awarded Sam Fertitta a judgment fixing a lien on Mrs. Toler's one-half interest in the lot for $28.47, with legal interest, for one-half taxes paid by Fertitta on the entire lot. 43 S.W.(2d) 467. The Tolers bring error.

It appears from the record that Mrs. Toler has been twice married. Her former husband was one E. A. Le Roy. Her present husband is Walter Toler. On November 30, 1922, while Mrs. Toler was the wife of Le Roy, and while the lot in question was the homestead of E. A. Le Roy and Mrs. Toler, his then wife, E. A. Le Roy executed and delivered to C. W. Howth and Sam Fertitta an instrument, in form a general warranty deed, whereby the said Le Roy purported to convey to Howth and Fertitta the lot in question. Mrs. Toler, then the wife of E. A. Le Roy, did not join in this deed. The deed recited a consideration of $200 paid and secured to be paid by the grantees. Later Howth conveyed his interest in the lot to Fertitta. The title of Fertitta depends on the deed from E. A. Le Roy. In this connection it appears that the deed from Le Roy to Howth and Fertitta, though in form a general warranty deed as above shown, was in truth and in fact intended as a mortgage to secure a debt.

After the execution and delivery of the deed from E. A. Le Roy to Howth and Fertitta, the Le Roys were divorced, and Mrs. Le Roy married her present husband, Walter Toler. She is the Maud Toler who is plaintiff in error here. The divorce decree between the Le Roys made no disposition of this lot. After the divorce decree, E. A. Le Roy died, but he lived on this property until his death. Shortly after Le Roy died Mrs. Toler resumed occupancy of the lot with her second husband as her homestead, and she has so occupied it ever since.

The Court of Civil Appeals bases its holding that Fertitta should recover an undivided one-half interest in this property on the following conclusions: (1) That prior to the divorce of E. A. Le Roy and his then wife, Maud Le Roy, now Maud Toler, the property in question was the community property of the two spouses; (2) that, when the marriage of said spouses was dissolved by divorce, no disposition being made of the property in the divorce decree, the community estate in this property ceased to exist, and they became tenants in common therein; (3) that the deed from E. A. Le Roy to Howth and Fertitta, though to the homestead, not joined in by the wife, and intended as a mortgage, was not absolutely void, but became effective to convey E. A. Le Roy's undivided one-half interest after...