Williams v. Farmers & Merchants Nat. Bank of Nocona, 13653.
| Decision Date | 04 February 1938 |
| Docket Number | No. 13653.,13653. |
| Citation | 116 S.W.2d 787 |
| Parties | WILLIAMS et ux. v. FARMERS & MERCHANTS NAT. BANK OF NOCONA et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Tarrant County; Bruce Young, Judge.
Suit by W. P. Williams and wife against the Farmers & Merchants National Bank of Nocona, Tex., and others, for damages allegedly sustained by the levy of an attachment writ. From an adverse decree, the plaintiffs appeal.
Reversed and remanded.
W. H. Slay and Robert Harrison, both of Fort Worth, for appellants.
Benson & Benson, of Bowie, and Cantey, Hanger & McMahon, of Fort Worth for appellees.
Appellants, W. P. Williams and his wife, brought suit in the district court of Tarrant county, against the Farmers & Merchants National Bank of Nocona, Tex., and C. A. McCall and A. D. Lunn, to recover damages against all such defendants, on the theory that said bank caused to be issued a writ of attachment in a suit then pending in Montague county, and had same levied upon certain real estate in Tarrant county, which was the separate property of Mrs. Williams. The suit out of which the attachment writ grew was one against J. W. Lehman and his wife, Florence Lehman.
After the suit was filed, Mr. and Mrs. Lehman were divorced, and Mrs. Lehman is now Mrs. W. P. Williams, one of the appellants. The levy was made under the writ on August 31, 1929. Appellants alleged, and introduced testimony supporting such allegation, that they entered into a common-law marriage on or about August 26, 1929, which was prior to the levying of the writ aforesaid.
The defendants pleaded the statutes of limitation of both two and four years, and urged certain demurrers and exceptions to the plaintiffs' original petition.
The case being tried to a jury, after all of the evidence had been adduced, the trial court, at the instance of the defendants, gave the jury a peremptory instruction to find for the defendants, all of which was done, and judgment rendered for the defendants. From this judgment the appeal is taken to this court, and the error complained of is that of directing the verdict in favor of the defendants.
We have concluded to discuss the counter propositions presented by the appellees, as these were evidently the matters brought to the attention of the trial court when appellees made a request for the peremptory instruction in their favor. The first counter proposition is to the effect that, if it be assumed that appellants' cause of action arose after the marriage of Mrs. Lehman to Mr. Williams, such action would be for the recovery of community property, and, having accrued more than four years prior to the institution of the suit, was barred by the operation of both the two and four year statutes of limitation. Vernon's Ann.Civ.St. arts. 5526, 5529. To this proposition we cannot agree. We are of opinion that the damages sought to be recovered constitute the separate property of Mrs. Williams, as they are damages done to her separate real estate. Law of Marital Rights in Texas by Speer, par. 419, and authorities cited under note 8.
The second counter proposition contends that, under the uncontroverted testimony, no sale had been consummated at the time the attachment writ was levied, and no notice had been brought home to the defendants of any negotiations on the part of Mrs. Williams for the sale of her property, prior to the levy. The evidence introduced by the seller, Mrs. Williams, and the proposed purchaser, covered an oral transaction. We do not believe that the sales agreement needs to be in writing, in order that a recovery might be had, because of the loss of the sale occasioned by the levy of the attachment writ. Hoover v. First State Bank, Tex. Civ.App., 192 S.W. 1149, 1153. That the seller has the right to recover for loss of advantageous sale, as a result of the levy of the attachment writ,...
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