Bartholomew v. Bartholomew , 1924 Tex. App. LEXIS 966 ( 1924 )

LANE, J.

Mrs. Ettie Bartholomew filed her original petition in this case in the usual form of trespass to try title. The same was filed in behalf of. herself and for her minor son, Ed. Bartholomew, on the 5th- day of May, 1919. On March 22, 1923, appellant filed her second amended original petition, on which she went to trial, alleging that she was married to Ed. Bartholomew in August, 1913; that he died about May, 1919; that during their marriage they- acquired a community estate, part of which was the south one-half of lots 1 and 2, block 2, Bartholomew Place addition to Houston, and also 160 acres in San Jacinto county; that for a long time prior to his death Ed. Bartholomew was indebted to various persons, and judgments had been rendered, abstracted, and recorded against him, specifying a number of judgments that were recorded against him in Harris county, and that by reason of said judgments he was unable to hold title to real estate in his own name; that his principal occupation was buying and selling real estate, and he pursued the practice for a long time prior to his death of placing the title to all property acquired by him in the-name of other persons, principally his brother, Elmore, and his sister, C. M., Bartholomew;, and when he made sales they would convey the legal title as he directed;, that the property aforesaid was acquired by him after his marriage to plaintiff, but, because of his financial condition, he placed the" legal title in appellee, to prevent said judgments attaching as liens on said property, and while the deeds to O. M. Bartholomew were in form of absolute conveyance to ber, yet in fact she held the property in trust for said Ed. Bartholomew, and this appeal-lant, who was entitled to one-half thereof in her community right, and on the death of' said Ed. Bartholomew, his half interest therein descended to his four children, one of whom is Edward E. Bartholomew.

Appellant further alleged that at the time of her marriage to Ed. Bartholomew she owned 32 feet oft of the east end of lots 13 and 14, block 167, with improvements, in Houston Heights addition to Houston; that after her marriage she, joined by her said husband and at his instance and request, conveyed said property to Wm. Donnelly in exchange for 262 acres in the Joseph Miller league in Harris and Montgomery counties, known as the Milo tract; that though her property was conveyed to Donnelly in exchange for said Milo tract, which tract should have been conveyed to her, yet the deed from said Donnelly for said 262 acres was made to her said husband, same being dated about September 9, 1914; that while said deed vested in said Ed. Bartholomew the legal title to said Milo tract, that plaintiff’s property was given in exchange therefor, and Ed. Bartholomew held said title in trust for her, and she was the equitable owner of said land; that shortly after Ed. Bartholomew obtained the deed to said Milo tract he conveyed same to his sister, 0. M. Bartholomew, 'appellee, on November 16, 1914, and while the deed to appellee recites a consideration of $10 and other good and valuable considerations, • that in fact appel-lee did not pay anything for said conveyance, but that title was placed in appellee’s name by Ed. Bartholomew to place it beyond the reach of appellant, or to prevent his creditors seizing it; that appellee had notice and knowledge at time said Ed. Bartholomew executed said conveyance to her that said 262 acres, known as the Milo tract, was appellant’s separate property, and that the appellee held it as constructive trustee for appellant; that on August 25,1916, appel-lee conveyed said Milo tract to Stimson, Con-well and Tharp for $2,300, which $2,300 she alleged was received by appellee as constructive trustee for appellant; and alleged, on information and belief, that said $2,300 was used by Ed. Bartholomew or appellee to pay on property in Eort Worth, which Eort Worth property was later on exchanged for said south one-half of lots 1 and 2, block 2, Bartholomew Place; that if she was mistaken in her allegation that the $2,300 received by appellee from said Stimson, Conwell, and Tharp was applied to paying for said Fort Worth property and latter exchanged for said Bartholomew Place lots, then she alleged that the said $2,300 which appellee held in trust for appellant was converted by appellee to her own use.

Appellant further alleged in this amended petition for the first time that about May, 1917, she suffered personal injuries while a passenger on a street car of the Houston Electric Company, and in October, 1917, said street car company settled with appellant paying her $900, one-half of which said Ed. Bartholomew wrongfully appropriated to his own use and benefit, without her consent and over her protest, and that said $450, she alleged on information and belief, was applied by said Ed. Bartholomew on said Eort Worth property, which was later on exchanged for said south one-half of lots 1 and 2, block 2, Bartholomew Place, but that, if she was mistaken as to that, then she alleged that said Ed. Bartholomew converted said $450 to his own use, and his estate is justly indebted to her in said sum of $450. She prayed that said trust be established in said property, that the interest of the estate of Ed. Bartholomew in said property be charged with the $450 paid her by the Houston Electric Company and appropriated by said Ed. Bartholomew, and in the alternative, if the trust was not established, then that she have judgment against defendant for $2,300 received by defendant from the sale of said 262 acres of land and converted to- defendant’s own use.

On September 27, 1922, defendant filed her first amended original answer, consisting of plea of not guilty, and a cross-action against plaintiff for the title of said south one-half of lots 1 and 2, block 2, Bartholomew Place, and also lots 6 and 7, biock 1, Bartholomew Place. On March 28, 1923, defendant filed her first supplemental answer, in which she pleaded the five-year statute of limitation and also the two and four year statutes of limitation.

Appellant, on March 27, 1923, filed her second supplemental petition in reply to the supplemental answer of defendant, in which appellant pleaded the -minority of Edward E. Bartholomew, and her disability of cover-ture, in avoidance of the defendant’s several pleas of limitation. The cause was tried before a jury. Upon peremptory instruction of the court the jury returned its verdict in favor of defendant. Judgment was accordingly rendered, and Mrs. Ettie Bartholomew has appealed for herself and for her said minor son. The only propositions presented by appellant upon which she bases her right to a reversal of the judgment are as follows:

“The court erred in peremptorily instructing the jury to return a verdict in favor of the defendant, because the undisputed testimony of the plaintiff; Ettie Bartholomew, showed that her husband, Ed. Bartholomew, was indebted to her in the sum of $450, which was her separate funds, paid by the Houston Electric Company for personal injuries sustained by her, and therefore she was a creditor of the said Ed. Bartholomew, and the parties having agreed that said property involved .in this suit was transferred to the defendant, and the legal title thereto placed in her name at the instance and request of the said Ed. Bartholomew,, to defraud his creditors;- hence the said Ettie Bartholomew was a creditor of said Ed. Bartholomew, and entitled to have said property subjected to the payment of said sum of $450.”

“Limitation did not begin to run against appellant’s claim for $450 until April," 1920— that is’, one year after her husband’s death— and her amended petition alleging said claim was filed in March, 1922; hence the cause of action was not barred.”

It is apparent that no complaint is made by this appeal of any part of the judgment, except that part thereof which refused her a recovery of a judgment against the estate of her deceased husband, Ed. Bartholomew, for the sum of $450 alleged to have been paid to her by the Houston Electric Company upon her personal injury claim, and which she alleged was her separate property, and which was appropriated by her husband for his own use and benefit. We shall therefore not further refer to or consider the other various matters alleged in the plaintiff’s petition and referred to in her motion for new trial, but will confine ourselves to a consideration of the sole question as to whether or not the court erred in refusing to adjudge that a trust in favor of appellant be established in the property described in her petition as against appellee.

The parties agreed: (1) That the defendant, C. M. Bartholomew, has a good record title, by regular chain of transfer from the sovereignty of the soil down to her, to the property described in the plaintiff’s second amended original petition in this cause. (2) That the title to said property was vested in the defendant at the instance and for the benefit of Ed. Bartholomew, the deceased husband of the plaintiff, and the father of the plaintiff, Edward E. Bartholomew; that the said Ed. Bartholomew, at the time the said property was conveyed to the defendant, was indebted to other persons, and that abstracts of judgment had -been abstracted and recorded against him, and.said property’ was paid for by the conveyance of property of Ed. Bartholomew, and the title taken in the name of the defendant at the instance of Ed. Bartholomew, in order to protect-the same against the claims of his creditors.

Appellant testified that she was married to Ed. Bartholomew in August, 1913; that they were never divorced, and were living together at the time of his death; that E'd. Bartholomew did not leave a will that she knew of; that he died in April, 1919; that about 1917 she was a passenger on a street car, and was injured in a collision; that the street car company paid her $900 in settlement of her injuries; that Ed. Bartholomew claimed half of that money, and would not sign up until it was paid over to him; that he left Houston with the $450 to take it to Port Worth, and said when he left Houston that he was going to Port Worth; that she did not know that he went to Port Worth, except by what he said; that he took this $450 with him when he left Houston, and did not have it when he came back; that Miss O. M. Bartholomew was living at that time in San Antonio, and has never talked with ¡appellant in reference to this transaction since it took place. On cross-examination she testified:

“In 1917, when I got this settlement from the street car company, Ed. Bartholomew wouldn’t sign the release unless he got half of the money. I agreed to that, and let him have half of it. I had to, to get any at all. Yes; I agreed to it, and it was finally arranged that I was to have half and he was to have half.”

The theory of appellant is that she was a creditor of her deceased husband, and that since it i§ shown that the property in question was conveyed to appellee, C. M. Bartholomew, in fraud of the creditors of her husband, .she is entitled in? this suit to have her claim for the $450 item hereinbefore mentioned established as a lien against said property as against appellee.

Appellee, by her counter proposition, contends that the evidence fails to show that Ed. Bartholomew, deceased, was indebted to appellant by reason of his having received $450 of the sum paid by the Houston Electric Company on account of personal injuries suffered by her, but, to the contrary, the undisputed evidence shows that such sum had been paid to him with the consent of appellant as belonging to him; that the evidence fails to show that the entire sum of $900, paid by the electric company, was for personal injuries, that is, what portion was for her injuries, and what portion for doctor’s bills, etc., and therefore appellant is not entitled to recover, but that, if it be conceded that in fact and in law Ed. Bartholomew was a creditor of appellant, as contended by her, her claim for the $450 item was barred by ’ the statute of limitation pleaded by appellee.

Both contentions must be sustained. Appellant testified that she had consented that her husband should have the $450 now claimed by her as his property, and therefore the payment of such sum to him did not make him her creditor. It is also shown, that, if Ed. Bartholomew, deceased, took the $450 and held it over the protest of appellant, he did so in October, 1917, more than five years before appellant instituted suit to recover the same, and that her claim therefor was barred by the statute of limitation pleaded by appellee. '

We think it proper to suggest, before closing this opinion, that since appellant has shown by her -pleading that Ed. Bartholomew died intestate in May, 1919, and that at the titne of his death he left debts which were still -unpaid, we do not think she could, in any event, lawfully establish her claim against the estate of Ed. Bartholomew, except through an administration in the probate court.

Eor the reasons expressed, the judgment is affirmed.

Affirmed.