Van v. Webb

• Decision Date: 10 November 1948
• Docket Number: No. A-1748.,A-1748.
• Parties: VAN et al. v. WEBB.
• Court: Texas Supreme Court

Page 151

215 S.W.2d 151

VAN et al. v. WEBB.

No. A-1748.

Supreme Court of Texas.

November 10, 1948.

Rehearing Denied December 15, 1948.

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

Trespass to try title by Lucy J. Webb against Verda Leake Van and others, wherein named defendant and her husband

filed a cross-action to foreclose an abstract of judgment lien. From an adverse judgment, plaintiff appealed to the Court of Civil Appeals which reversed and rendered judgment for the appellant, 210 S.W.2d 877, and defendants bring error.

Judgment of the Court of Civil Appeals reversed and cause remanded to the district court for another trial.

Kilpatrick & Kilpatrick, of Cleburne, for petitioners.

Joe S. Moss and C. P. Webb, both of Post, for respondent.

SIMPSON, Justice.

Lucy J. Webb brought a trespass to try title suit against Verda Leake Van and others in the district court of Crosby County to recover two tracts, each containing 320 acres. This action was really one to remove the cloud cast on the title to this land by the filing in Crosby County of the abstract of a money judgment which had been rendered in the district court of Johnson County in favor of Mrs. Van against Sidney Webb, husband of the plaintiff. The judgment against Webb was dated May 11, 1940. He died April 17, 1943. The abstract of the judgment was filed in Crosby County May 26, 1943. This action was begun March 6, 1947. Mrs. Van filed an answer and cross-action May 30, 1947, in which she alleged the recovery, abstracting and continued subsistence of the judgment against Webb; that Webb had died intestate more than four years since and no administration had been taken out on his estate; that the land in suit was community property of Webb and the plaintiff and subject to the abstract of judgment lien; and prayed, in effect, for foreclosure of the lien as well as all other appropriate relief. All the defendants other than Mrs. Van either disclaimed, defaulted, or were dismissed. At the conclusion of a trial without a jury, the district judge entered a decree of foreclosure in favor of Mrs. Van. This judgment was reversed by the Court of Civil Appeals and judgment rendered for Mrs. Webb. 210 S.W.2d 877. That court based its holding upon the conclusion that the evidence showed clearly and satisfactorily that the land had been given to Mrs. Webb during her coverture and consequently was her separate property; that the only circumstance to the contrary was a presumption that the land was community property, a presumption the law indulges from the fact that the deeds to Mrs. Webb did not show that it was conveyed to her as her separate estate; that this presumption had been overcome by the evidence; and since the land was Mrs. Webb's separate property, it could not be sold to pay a debt Sidney Webb owed Mrs. Van. In this ruling the court fell into error.

The land was conveyed to Mrs. Webb while her husband, Sidney Webb, was living. One tract was deeded to her by her son Pat and the other by another son, Don. Neither deed contained any recital that the land was conveyed to Mrs. Webb as her separate property. Accordingly, the title taken by her was presumptively community property, and the presumption thus arising could be overcome only by clear and satisfactory evidence. Art. 4619, R.S., Vernon's Ann. Civ.St. art. 4619; Wilson v. Wilson, 145 Tex. 607, 201 S.W.2d 226.

The recovery of the judgment against Sidney Webb, his death, intestacy, and the absence of an administration on his estate, all as alleged by Mrs. Van, are not in dispute. The deed from Pat Webb to his mother, dated December 26, 1938, recited a consideration of $300 cash "to me paid by Mrs. Lucy J. Webb" and the assumption by the grantee of a lien debt of $5300. The deed from Don Webb, dated February 18, 1941, recited a consideration of $1000 "to me in hand paid by Mrs. Lucy J. Webb" and the assumption by his mother of "all indebtedness due the Federal Land Bank of Houston." Each of these grantors and their mother testified that the money considerations recited were not actually paid and that the conveyances were intended as gifts. Mrs. Webb and Sidney Webb executed two deeds of trust on the first tract, one to the Federal Land Bank of Houston and the other to the Land Bank Commissioner, dated January 31, 1940. There was no recital in these deeds of trust that the land was her separate estate. Mrs. Webb testified that what was paid on the encumbrances against the land was out of her separate property. After Sidney Webb's death, deeds were executed by all of his heirs, reciting a consideration of $10 paid and purporting to "bargain, sell, release and forever quit claim" the land to Mrs. Webb.

Thus it appears that the original deeds from Pat Webb and Don Webb to their mother carried, in addition to the presumption which has been noted, evidence that the conveyances were not gifts but were sales made upon substantial cash considerations. True it is that Mrs. Webb and her two sons testified that these recitals were incorrect and that no cash at all was paid. Of course, these denials did not establish as a matter of law that no money actually passed; they did no more than raise fact issues from which the district court was at liberty to determine whether or not the cash considerations were paid to the extent and in the manner the deeds declared. The presumption adverted to is further supported by the act of Mrs. Webb and her husband's executing deeds of trust on one parcel of the land with no recital that Mrs. Webb claimed the property as her own. Moreover, it is significant that all the heirs of Sidney Webb, including the two sons who had deeded the land to Mrs. Webb, executed deeds in favor of their mother after their father died. If the land was Mrs. Webb's separate property and the heirs of Sidney Webb had inherited no interest from him, the making of these deeds might well be deemed meaningless. These transactions amounted to some evidence tending to establish that the land was community, and that the children were conveying to their mother estates they had inherited from their father. It follows from these circumstances that the Court of Civil Appeals was not warranted in concluding as a matter of law that there was no evidence to support Mrs. Van's contention that the land was community property.

The proof Mrs. Webb presented in support of her contention that the land was conveyed to her by deeds of gift was the testimony of herself and the two sons who had made the deeds. The arguments went that since the testimony of Mrs. Webb and her sons was uncontradicted and there were no circumstances casting suspicion upon it, the court was bound by it. This position is untenable for the reason, among others, that this testimony was not uncontradicted but, to the contrary, the record contained proof, as has been detailed, reasonably supporting the view that the land was sold to Mrs. Webb and not acquired by her by gift. Wilson v. Wilson, supra.

Mrs. Webb advanced the contention that the district court had no jurisdiction of Mrs. Van's cross-action, but the Court of Civil Appeals decided the case on another theory, as has been noted, and so did not discuss the question. This point must be overruled. It is true that Mrs. Van's claim is in effect against the estate of Sidney Webb, and ordinarily would be cognizable only in a probate court. An able discussion of that principle occurs in Cole v. Franklin Life Ins. Co., 5 Cir., 93 F.2d 620, opinion by...