Brown v. Brown , 1926 Tex. App. LEXIS 117 ( 1926 )

HIGHTOWER, C. J.

The appellee, Mary L. Brown, filed this suit in one of the district courts of Jefferson county against the appellant, Noah Brown, in trepass to try title to recover the title and possession of lots 1 and 2 in block 4, and lots 24 and 25 in block 2, of the West End addition to the city of Beaumont. Appellant answered by general denial and plea of not guilty, and then specially answered by disclaimer as to lot 1 in block 4, and also by disclaimer as to one-half undivided interest in lots 24 and 25 in block 2 of the West End addition to the city of Beaumont ; —all described in appellee’s petition.

After the parties announced ready for trial, a written agreement was entered into and filed in the cause, in which the parties admitted that the title to lot No. 1 in block No. 4 and a one-half undivided interest in lots Nos. 24 and 25 in block 2 of the West End addition to the city of Beaumont sued for by the appellee was in the appellee, and, further, that the title to a one-half undivided interest in lots Nos. 24 and 25 in block No. 2 of the West End addition to the city of Beaumont was in appellant, Noah Brown. Therefore, by appellant’s disclaimer, as contained in his answer, and by the agreement of the parties in open court, the appellee, as plaintiff below, was entitled to recover judgment, as she did, for the title and possession of lot No. 1, in block No. 4, as well as the title and possession to a one-half undivided interest in lots Nos. 24 and 25 in block No. 2 of the West End addition to the city of Beaumont, and this left in controversy between the parties only lot No. 2 in block No. 4, described in appellee’s petition.

The case was tried with a jury, and was submitted upon special issues, and, in answer to one of the special issues, the jury found that lot No. 2 above mentioned was purchased by appellant and appellee with community funds at a time when they were man and wife, and, therefore, lot No. 2 became their community property at the time of its purchase. The jury’s finding on this issue is abundantly supported by the evidence, and must therefore be sustained. The trial court, upon this finding of the jury, also adjudged and decreed that the appellee recover of appellant a one-half undivided interest in said lot No. 2. It is from this judgment as a whole that the appeal is prosecuted.

We shall not discuss any of appellant’s assignments or propositions separately. It will suffice to say that all of his assignments and propositions attacking the verdict and judgment, in so far as it awards to ap-pellee title and possession of lot No. 1 and a one-half undivided interest in lots Nos. 24 and 25 of the West End addition, must be overruled, because appellant expressly disclaimed in his answer any rigjht, title, or interest in or to any portion of that much of the property sued for by appellee, and the court was compelled to render judgment therefor in her favor, as he did. And, the jury having found upon sufficient evidence that lot No. 2 sued for by appellee was community property, of the parties at the time it was purchased, and remained such, it was the duty of the court to render judgment in appellee’s favor for a one-half undivided interest in that lot also, as was done:

There is nothing in appellant’s contention that as to said lot No. 2 an outstanding title was shown by the evidence to be in one Jim Brown, for the reason that the undisputed evidence shows that the deed executed by appellant and appellee to said Jim Brown, although in form a deed of conveyance, was, in fact, only a mortgage; and, the undisputed evidence further showing that at the time such mortgage was executed the property was the homestead of appellant and appellee as man and wife, the mortgage was absolutely void, and no title ever passed out of appellant and appellee into Jim Brown by that purported deed; and, since only an undivided one-half interest in said lot No. 2 was awarded by the judgment to appellee, leaving the other one-half interest in that lot in appellant, there was no prejudicial error, if any at all, in the action of the trial court in striking the deed from Jim Brown to appellant, Noah Brown, purporting to convey to the latter said lot No. 2.

No useful purpose would be served by any further discussion of this case. The judgment was correct, and must be affirmed, and it has been so ordered.