Dority v. Dority , 30 Tex. Civ. App. 216 ( 1902 )

This action was brought by the appellee Helen Dority in the District Court of Nueces County against her husband, the appellant B.P. Dority, and the appellants James W. Durst and R.P. Clarkson, and against A.A. Thompson, who has not appealed, for the cancellation of certain leases of land, the appellee Helen Dority's separate property, made by the husband B.P. Dority, and to enjoin him from interfering with her separate estate and to recover of the lessees the rental value of the land. There was a trial by the court without a jury which resulted in a judgment in favor of the plaintiff as prayed for. All of the defendants have appealed except Thompson.

B.P. Dority and Helen Dority became man and wife September 13, 1873, and continued to live together as such until October 26, 1899, when she refused to live with him any longer as his wife. After that time they conducted separate households in the same homestead until January, 1901, when the defendant B.P. Dority left the plaintiff in possession of the homestead and went to Mexico. He returned in May, 1901, and offered to resume marital relations with the plaintiff, but she refused, stating that she would have nothing to do with him. He then left her in sole possession of the homestead and they have lived apart ever since. The homestead as well as the other real estate described in the petition and known as the Dority ranch and the town lots belongs to the plaintiff as her separate property. In addition to this she owned in her separate right the personal property adjudged to her. Since October 26, 1899, when their marital relations ceased, the defendant B.P. Dority has contributed nothing to the support of the plaintiff, and although he has at all times had control of her separate property and leased the same, he failed to pay the taxes thereon or to give her any of the proceeds thereof. The trial judge found from the evidence, which fully sustained the finding, that there is no reasonable expectation or possibility that the plaintiff and her husband would ever resume their marital relations, and that their separation was complete and final.

November 10, 1899, the plaintiff brought a suit against B.P. Dority in the District Court of Nueces County for divorce, alleging cruel treatment, excesses, and outrages on his part toward her of such a nature as to render their further living together insupportable, and in that suit sought to have her separate property set apart to her and a division of the community property. On the verdict of a jury the divorce was granted and appellee's separate estate was set apart to her and a division of the community property made by agreement subject to the result of an appeal. The appeal resulted in the reversal of the judgment granting the divorce, and the plaintiff thereafter, May 16, 1901, dismissed her suit. This suit was instituted June 11, 1901.

The defendant B.P. Dority is a strong, healthy man, a wheelwright by trade, but had for ten years no employment except odd jobs at his trade. He has no separate estate, and the only property that he has any interest in is the homestead in the possession of the plaintiff and certain household and kitchen furniture, their community property. But at the trial below he withdrew all demand for affirmative relief as to any division or equitable disposition as to the homestead and the personal effects contained therein belonging to the community. The plaintiff Helen Dority is a frail and delicate woman 44 years of age, and is subject to spells of serious illness. She supports herself by her own labor in milking and keeping a dairy with cows her separate property, earning thereby about $30 a month. This she has done for the past ten years, and the defendant B.P. Dority has during that time contributed nothing to her support except furnishing groceries, but for two years before the trial he had furnished nothing at all, and in no manner contributed anything to her support either by supplies, labor, or otherwise. She had received nothing from the rents of her property, and out of her personal earnings had paid the taxes thereon within the last two years for 1898, 1899, and 1900. The defendant B.P. Dority failed to pay the taxes upon the plaintiff's property; he declared that he was unable to do so, and allowed it to be advertised for sale for the delinquent taxes of 1898. In order to raise the money to pay the taxes and prevent a sale of her land and to furnish herself means of support, the plaintiff, without joinder of her husband, contracted to lease the ranch to one H.H. Keys at a rental of $200 per annum. The defendant B.P. Dority repudiated the lease and prevented Keys from taking possession of the land. It was then the plaintiff refused to live with him any longer.

By a written instrument dated October 23, 1899, but executed five days after the plaintiff had told defendant B.P. Dority that she would no longer live with him as his wife, the said B.P. Dority, without the knowledge or consent of the plaintiff or her joining him therein, undertook to lease the Dority ranch to the defendant James W. Durst for a term of one year with privilege of renewal of the lease at the end of that time for two years. The consideration was a rental of $10 a month and the privilege to said B.P. Dority to pasture therein about ninety head of horses, the separate property of said B.P. Dority, and fifteen or twenty head of cattle, the community property of himself and wife. There was no provision in said lease for a subletting. The defendant Dority sold his horses to Durst and also sold the cattle and paid no part of the proceeds to the plaintiff. Durst held possession under this lease until December 17, 1900, when with the consent of defendant he sublet by verbal lease to A.A. Thompson for an unexpired term of three years, or until October 23, 1902, at a rental of $20 a month in money and improvements to the value of $5 a month. Durst paid on this lease to the defendant Dority $150, no part of which was paid to the plaintiff, but was applied by the said Dority to his attorney fees and other expenses in the divorce suit and other litigation between the plaintiff and himself. Having been notified by plaintiff not to pay rents to the defendant Dority, Thompson has held the rents due by him subject to the issue of this suit, except $80 which was paid to the defendant Dority during the pendency of the divorce suit and applied by him to his own use. By the terms of the lease from Durst to Thompson, the latter was to recognize Durst as his landlord but the rent was to be paid to the defendant Dority. This lease was also made without the knowledge or consent of the plaintiff and during the pendency of the suit for divorce. The defendant Thompson had held possession of the land ever since the date of his lease, and has placed improvements thereon amounting to $120 in value.

On May 21, 1901, the defendant Dority, without the knowledge or consent of the plaintiff or her joining therein, executed a written instrument by which he undertook to lease to the defendant R.P. Clarkson the Dority ranch for the term of ten years from that date with the privilege of renewal at the end of that period for the term of five years for a rental of $25 a month, to be paid monthly in advance to the said B.P. Dority, with the verbal understanding that possession was not to be taken under said lease until the expiration of the lease to Thompson without an agreement with him. No possession has yet been taken by Clarkson under this lease. The lease contained a clause that the lessee Clarkson should pay all expenses and costs of litigation incurred in resisting the attempt of any person to recover possession of the land, to be reimbursed by the rents as they fell due. The Dority ranch is of the reasonable rental value of $25 a month; the town lots are unproductive and yield no revenue, except that the homestead is occupied by the plaintiff. The defendant Dority assigned the leases to his attorneys to pay his attorney fees and personal debts of over $650, and to pay a note for money obtained to defend a suit involving the title to the land. The title of the plaintiff was of record and the several defendant lessees knew of her separate ownership of the property.

The trial judge concluded that the several leases of the plaintiff's ranch were a legal fraud upon the rights of the plaintiff and that they should be set aside and canceled. We think the facts justify this conclusion. Appellant Dority's first assignment of error is addressed to the overruling of his general demurrer. The facts alleged show that the parties were living separately and apart, and that the husband was refusing to contribute anything to the wife's support, and had fraudulently endeavored to alienate her separate land by long terms of lease, and was depriving her of all use thereof and appropriating to his own use the rents thereof, while she was required by her own personal labor to earn money and pay the taxes against the land which he had allowed to become delinquent and for which a sale had been advertised and was threatened. While the facts causing the separation may not have been sufficient to entitle the plaintiff to a divorce, and while the fault of the separation may have been the plaintiff's, yet the facts remained that they were separated without hope of ever resuming their marital relations; that the land belonged to the plaintiff's separate estate; and that the defendant in fraud of her rights was endeavoring to alienate her land by leases for long terms and was appropriating to his own use the rents received therefor and refusing to pay any portion thereof to the plaintiff. Under the state of facts thus alleged the plaintiff had the right to maintain a suit against her husband and the lessees under his attempted leases to cancel the leases and to restrain him from interfering with her separate estate. As stated in O'Brien v. Hilburn, 9 Tex. 298: "When the husband assumes the power of absolute disposition, or any control inconsistent with the marital rights of the wife, he violates his duty and the trust reposed in him by the law, and is responsible for it. And when in consequence of any unauthorized act of his, violative of her marital rights, it becomes necessary for the wife to resort to suit, there is no necessity that she should join her husband in the action. His having assumed a power of disposition or control over her property inconsistent with her rights, affords of itself a sufficient reason for omitting to join him in an action which has for its object a restoration or preservation of the rights of which he has sought to deprive her. In such a case, if it be necessary that the husband be made a party to the suit, it should be, it would seem, in the character of defendant rather than that of plaintiff."

We are of the opinion that the petition stated a good cause of action against the husband and the other defendants for the cancellation of the leases and the restraining of the husband from further interference with the plaintiff's property, and that the district court had jurisdiction of the cause of action. It was not the proceeding contemplated by article 2972 of the Revised Statutes, and an unsuccessful proceeding under that article would not be res adjudicata of the present suit. Hence the court did not err in overruling the defendant's plea setting up the proceeding by the plaintiff in the county court under article 2972 of the Revised Statutes, in which judgment had been rendered against her in bar of this action. The portions of the answer set out in paragraphs (g) and (h) of the second assignment of error presented no defense and were properly stricken out. The conclusions of fact that there is no reasonable expectation or possibility that the said parties will ever resume their marital relations, which is assailed in the third assignment of error, finds full support in the evidence and will not be disturbed by this court. The conclusion of fact assailed in the fourth assignment of error, that the consideration of the conveyance by B.P. Dority to his wife for the 1550 acres of land comprising the ranch was for money received by her from the estate of her father, is supported by the recital in the deed, but it is immaterial, as the land was shown to be the separate property of the plaintiff. The conclusion that Dority gave his wife her earnings in the dairy was supported by his evidence. This is attacked by the fifth assignment. In this connection we dispose also of the thirteenth assignment of error against the conclusion of the court awarding to the plaintiff in her own separate right the two cows and a calf. We infer from the evidence that the defendant Dority gave the plaintiff the proceeds of her dairy and that these cows were purchased with such proceeds, and there would be no error in holding them to be separate property and consequently none in setting them apart to her although treated as community property. The conclusion as attacked under the sixth assignment, that Dority applied no part of the rent received from the ranch to plaintiff's use, in the light of the explanation made by other parts of the finding and the evidence, makes the error, if any, immaterial. The same may be said as to the seventh assignment.

By the eighth assignment of error it is contended that the court erred in holding that the wife is required by law to join her husband in a lease of her separate real estate. The facts show that the husband after he had become separated from his wife in case of the Durst lease, and during the pendency of a suit by her for a divorce in case of the renewal of that lease and the subletting to Thompson, and in case of the Clarkson lease after the reversal of the decree of divorce and the dismissal of the suit, but while living separate and apart from his wife, undertook by written instrument to lease the wife's separate property for a longer period than one year, in the case of the lease to Clarkson for a period of ten years with the privilege of a renewal for five more years. We are of the opinion that such a lease under the statute is a conveyance in which the wife is required to join in order to make it valid. Revised Statutes, arts. 624, 628, 635; see also 26 Am. Dig., p. 2069. We are further of the opinion that even if it should be held, which we do not believe should be done, that the husband would ordinarily have the power to lease the wife's separate lands for a longer term than one year without her joining in the lease, yet the facts in this case show such a legal fraud upon the rights of the wife that the leases should be canceled on that account.

The sole management by the husband of the wife's separate property depends upon their living together as husband and wife and his proper exercise of the trust. He will not be permitted after the parties have become permanently separated to continue in this trust or to abuse it, and the judgment of the court restraining the defendant Dority from further control of or interference with his wife's separate property was right. The lease having been made to Durst and the rental thereon collected while the defendant Dority was under the same roof with the plaintiff and apparently in rightful custody of her separate property, it is believed that the judgment against him for rents paid during such time was error. The judgment of the court below therefore will be in all things affirmed except as to the judgment in favor of the plaintiff against the said James W. Durst for the rental value of the land during the term of the lease to him, which will be reversed and judgment here rendered that the plaintiff take nothing against said Durst as to said rent.

Affirmed in part and reversed and rendered in part.

DISSENTING OPINION.