Wagner v. Riske

• Decision Date: 16 February 1944
• Docket Number: No. 8203.,8203.
• Citation: 178 S.W.2d 117
• Parties: WAGNER v. RISKE et al.
• Court: Texas Supreme Court

178 S.W.2d 117

WAGNER v. RISKE et al.

No. 8203.

Supreme Court of Texas.

February 16, 1944.

Rehearing Denied March 15, 1944.

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

Suit by W. A. Wagner against Emil Riske and others to foreclose an attachment lien. To review a judgment of the Court of Civil Appeals, 175 S.W.2d 296, which affirmed a judgment for defendant, the plaintiff brings error.

Affirmed.

C. C. Carsner, of Victoria, for plaintiff in error.

Crain, Vandenberg & Stofer, of Victoria, for defendants in error.

CRITZ, Justice.

As we gather from this record, W. A. Wagner first filed this suit against Emil Riske and wife, Liessette Riske, to recover judgment on a promissory note alleged to have been executed by Emil and Liessette Riske in the principal sum of $800, dated December 1, 1921, maturing December 1, 1922, bearing seven per cent. interest per annum, providing for ten per cent. attorney's fees, and payable to plaintiff. During the pendency of the suit Emil Riske died, and plaintiff filed an amended petition against Liessette Riske, and Anita Riske Giese and her husband, Lester E. Giese. For convenience we will hereinafter refer to Liessette Riske as Mrs. Riske, to Anita Riske Giese as Mrs. Giese, and to Lester E. Giese as Mr. Giese.

By his amended petition, plaintiff alleged the death of Emil Riske. Mrs. Riske is his surviving wife, and Mrs. Giese is his only surviving child and heir at law. Mr. Giese is joined pro forma. Plaintiff's petition alleged that no administration had been had on Emil Riske's estate, and that none was necessary, because plaintiff is its only creditor. Plaintiff's petition then alleged that at the time of his death Emil Riske left a community estate, consisting of 243.8 acres of land in Victoria County, Texas, and personal property. The land is described, but the petition neither describes the personal property nor alleges its value. We are here only concerned with the 243.8 acres of land. Plaintiff contends that he is entitled to foreclose a lien on 43.8 acres of the 243.8 acres of land. It is admitted that 200 acres of the 243.8 acres was the homestead of Mr. and Mrs. Riske, and not subject to execution. There is no contention that plaintiff can subject any part of the 243.8 acres of land to his debt, unless it constituted a part of Emil Riske's estate.

The case was tried in the district court, before the court without the aid of a jury, and judgment was rendered for the defendant. This judgment was affirmed by the Court of Civil Appeals. 175 S.W.2d 296. Wagner brings error.

From the statement we have made it is evident that the trial in the district court involved the question as to whether Wagner was entitled to foreclose a lien on 43.8 acres out of the 243.8 acre tract. The trial court found that the 243.8 acre tract was the separate property of Mrs. Riske, and therefore was not subject to Emil Riske's debts, either separate or community. Also, the trial court sustained Mrs. Riske's plea of coverture. Plaintiff raises no issue with reference to the ruling of the trial court as to Mrs. Riske's coverture. Only the issue of title to land is involved.

The record is before us without a statement of facts. The trial court filed findings of fact. These findings show: That as first acquired this 243.8 acres of land was the community property of Mr. and Mrs. Riske; that such land was deeded to Mr. and Mrs. Riske by J. I. Kyle on November 10, 1913, for a total consideration of $14,628; that $6,028 of this consideration was paid in cash, and vendor's lien notes were given to Kyle for the balance of the consideration, $8,600; that on November 5, 1924, Emil Riske conveyed all of his right, title and interest in this land to Mrs. Riske, as her separate property and estate; that the consideration for this conveyance was the assumption by Mrs. Riske of an indebtedness of $4,000 against this land; that on the same day she received a deed to this land from Mr. Riske, Mrs. Riske borrowed some money from her father, William Fehler, for the purpose of paying certain indebtedness of Mr. Riske; that on November 15, 1924, Mr. and Mrs. Riske conveyed this tract of 243.8 acres of land to William Fehler; that such deed recited a consideration of $9,000 cash paid by Fehler to Mr. and Mrs. Riske and Fehler assuming $2,000, the balance due by Mr. and Mrs. Riske on the original purchase-money debt for the land conveyed; that on December 3, 1925, William Fehler conveyed the whole of the 243.8 acre tract to his daughter, Mrs. Riske, as her separate property; that on April 24, 1926, the holder of the vendor's lien note for $2,000, which was the balance unpaid of the original vendor's lien notes executed to J. I. Kyle, executed a release to Emil Riske of said note; that said note was either paid at that time or had theretofore been paid; that on the same date as the above release, April 24, 1926, Mr. and Mrs. Riske executed a deed of trust covering 43.8 acres of this 243.8 acre tract to Newton M. Crain, as trustee for Alois M. Raab, to secure the said Raab in the payment of two notes in the principal amount of $2,050; that Mrs. Riske, with money secured by her from her father, William, Fehler, repaid this loan to Alois M. Raab.

Clearly, under the above facts as found by the trial court, this 243.8 acres of land became the separate property of Mrs. Riske by virtue of the deed, above described, to her from her father, William Fehler. In this connection, the findings of the trial court show that Mr. and Mrs. Riske deeded this land to William Fehler for a cash consideration of $9,000 and the assumption by Fehler of $2,000 against the land. This deed constituted this land the property of William Fehler. William Fehler then conveyed this land to Mrs. Riske, as her separate property and estate. This last deed certainly constituted this land Mrs. Riske's separate property or estate. McCutchen v. Purinton, 84 Tex. 603, 19 S.W. 710; 23 Tex. Jur., p. 159, § 129; Law of Marital Rights in Texas, Speer, p. 184, § 135.

It appears that the plaintiff requested the trial court to find: "Therefore, plaintiff requests the trial court to find that the balance of the vendor's lien note amounting to $2000.00 was paid with money borrowed from Alois Raab on April 24, 1926, and that Alois Raab was paid by Mrs. Riske in 1934 with money borrowed from her father."

The trial court failed to make the finding above indicated, and Wagner excepted thereto, and presented such matter as error in the Court of Civil Appeals. The opinion of the Court of Civil Appeals holds that, in the absence of a statement of facts, that court was unable to determine whether...