Vermillion v. Haynes
| Decision Date | 01 December 1948 |
| Docket Number | No. A-1810.,A-1810. |
| Parties | VERMILLION v. HAYNES et al. |
| Court | Texas Supreme Court |
Cedric G. Hamlin and Franklin E. Spafford, both of Dallas, for petitioner.
Geo. K. Holland and Robert W. Finklea, both of Dallas, for respondent.
This is a suit for partition and accounting filed by R. B. Haynes et al., respondents against Hester A. Vermillion, petitioner. A trial court judgment for respondents was affirmed by the court of civil appeals. 211 S.W.2d 781.
In 1920 H. M. Vermillion and his wife, Hattie Haynes Vermillion, bought as their community property a lot in Dallas, for $1,500 cash and a vendor's lien note for $3,000. In December, 1924, they renewed a balance of $2,000 due on this note, for five years. On February 6, 1929, H. M. Vermillion executed a general warranty deed conveying the lot to his wife, Hattie Haynes Vermillion, "for her own individual and separate estate and to and for her own separate and individual use and benefit", the consideration being "ten dollars paid by Mrs. Hattie Haynes Vermillion, and for the further consideration of love and affection I have for my said wife." In December, 1929, and again in December, 1935, Mrs. Vermillion and her husband executed a five-year renewal of the outstanding $2,000 note and the lien securing it.
In January, 1937, Hattie Haynes Vermillion died intestate and without issue. In June, 1939, H. M. Vermillion married petitioner, Hester A. Vermillion.
In December, 1940, Vermillion and petitioner renewed the $2,000 note for another five years. In December, 1943, Vermillion paid $1,000 on this note as well as accrued interest of $60. Then in May, 1944, he died testate, leaving all his estate to petitioner and naming her independent executrix. On December 15, 1944, petitioner paid the $1,000 balance due on the $2,000 lien note and $60 accrued interest.
On February 9, 1945, respondents filed this suit against petitioner individually and as independent executrix, claiming an undivided half interest in the lot as the collateral kin and heirs of Hattie Haynes Vermillion, on the theory that the lot became her separate property under the deed executed to her by H. M. Vermillion. They alleged that after the death of Hattie Haynes Vermillion, H. M. Vermillion had the benefit, use and possession of the lot until his death, since which time Hester A. Vermillion had had the use and benefit of it; that the "reasonable rental value thereon was $75.00 per month, one half of which belongs to" respondents; they prayed that the lot be partitioned and that they have "a full and complete accounting for all rents, revenues and income therefrom and use thereof" since the death of Hattie Haynes Vermillion.
Petitioner answered that H. M. Vermillion executed the deed to Hattie Haynes Vermillion only for convenience and without any intention of passing title to her as her separate estate, for which reason she had held the record title for the benefit of the community estate and the lot remained the community property of H. M. and Hattie Haynes Vermillion; that when the latter died intestate and childless the entire estate passed to the former; and that when he died it passed under his will to petitioner. In the alternative, she prayed that, should the court decree any interest in the lot to respondents, she recover in an accounting for what she and H. M. Vermillion had paid on the purchase money note because what he had paid was out of their community funds, for taxes paid, for the enhanced value of improvements made with community funds and for certain other expenses paid in connection with the property.
By trial amendment filed during the hearing she pleaded limitation of both two and four years against respondents' demands.
After trial without a jury, the trial court decreed that respondents, as the heirs of Hattie Haynes Vermillion, were the owners of an undivided half interest in the lot and appointed a receiver to sell it. He found that the reasonable rental value of the lot from January 12, 1937, to June 2, 1947, the date of judgment, was $1,0371.98 and that respondents were entitled to have half that amount charged against petitioner's interest. He allowed petitioner half the taxes paid by her and H. M. Vermillion on the lot after the death of Hattie Haynes Vermillion, $1,624.35 for the use of equipment necessary to conducting a sandwich shop on the lot from the date of Hattie Haynes Vermillion's death to date of judgment, half the expenses incurred in operating the shop from the death of H. M. Vermillion to date of judgment, and $750 as half the enhanced value of the lot by reason of improvements placed on it in 1933; but he refused to allow her the $2,000 and and interest paid by her and her husband on the vendor's lien note.
On the day following the date of judgment, respondents moved the trial court to strike petitioner's trial amendment pleading limitation against respondents' demands. The amendment had been filed with permission of the court on May 28, six days after the trial started and four days before judgment was rendered. The grounds upon which respondents prayed dismissal of the trial amendment were (1) that petitioner had had more than a year in which to file it but had failed to do so; (2) it was filed after the evidence had closed and without previous notice to respondents; and (3) it was without merit and without support "under the evidence and if given effect would prevent equity being done." The court entered an order striking the trial amendment but recited no reason other than that he "is of the opinion and so finds that the same should be sustained."
The application for writ of error presents three questions for our decision, namely, (1) whether petitioner is liable for rents charged against H. M. Vermillion for his use and possession of the property; (2) whether she should be allowed the $2,000 balance of the purchase price and interest paid on the property by her and her husband, H. M. Vermillion; and (3) whether the trial court erred in striking her trial amendment.
In support of her point that the court of civil appeals erred in holding she was liable for rents charged against H. M. Vermillion for his use and possession of the property from the death of Hattie Haynes Vermillion until his own death in May, 1944, petitioner contends that H. M. Vermillion could not be so charged because he was a tenant in common with respondents. Respondents counter that he was liable because he held the property adversely to, and to the exclusion of, them as his co-tenants. That issue is settled by the trial court's Finding of Fact No. 7 as follows: ...
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