Moody v. Moody , 1954 Tex. App. LEXIS 1946 ( 1954 )

On Motion for Rehearing.

HAMBLEN, Chief Justice

(concurring).

I concur in the 'result reached by Associate Justice GRAVÉS, ,'but upon .reasoning different from that which he applies. The obligation of appellant to pay her income tax depends 'not upon the pro.visions ' of paragraph 4. of the partition agreement. That provision, in my opinion, clearly, has reference only to indebtedness incurred in connection with the divorce suit Jhen pending. The rights of the. respective parties depend entirely upon the proper construction to be placed on that portion of the agreement which .provides that Mrs. Moody is to receive certain specified properties “free from all community debts exr isting against said property.” Neither,, in my opinion, do their rights depend upon whether or not. the word “debt” or “indebtedness” is broad enough to include income taxes. In fact had the agreement provided that Mrs. Moody was to receive the specified properties “-free from all community debts," without further limitation, there might then be discernible to me the intention to include income taxes. But the limitation of debts to those “existing against said property,” indicates to me that the parties contemplated only that class of debts which would, as of the date of their agreement constitute liens or incum-brances against the specified property. It amounted to nothing more than a representation that Mr. Moody was transferring to Mrs. Moody the unencumbered fee’simple estate in the properties subject to such alienation or disposition as she might see fit to make. The fact that our internal revenue laws permit director to subject all property owned by the taxpayer to a lien to effect collection, does not impinge upon that representation.

For that reason, appellant’s motion for rehearing should be refused.