Messimer v. Echols , 1917 Tex. App. LEXIS 486 ( 1917 )

The appellants, not having filed a motion to set aside the findings of the jury, are not in a position to complain of the same. Railway Co. v. Weems et al., 184 S.W. 1102. And the appellants prepared and asked the court to submit to the jury certain special issues, which were by the court refused for the reason, as given by the court, that the 32 questions "were submitted to the court in such shape the court could not submit one without submitting all of them, and part of these questions were submitted in the main charge." Therefore this ruling of the court may not be said to be reversible error; and assignments of error Nos. 18 to 27, inclusive, and No. 36 are overruled.

It is not a ground for complaint by the children as to the amount owing by Mrs. Messimer to her husband in accounting and settlement of the estate, and Mrs. Messimer does not appeal. The only issue in the case between the appellants and the plaintiff is that pertaining to the deed of February 12, 1914, conveying the 445 4/5 acres of land. If the appellants were entitled to hold the land under the deed, then judgment should have been rendered in their favor for the land or for one-half of it, free of any lien against it arising from their mother's debt owing to the plaintiff. But if, as found by the court, the land was community property, and the conveyance was without consideration and fraudulent, then appellants were not legally entitled to hold the land or any part of it. And it is believed that the court did not err in finding that the 445 4/5 acres was community property. According to Mrs. Messimer's testimony, the land was bought during the marriage and within two or three years after W. M. Messimer was sent to the asylum, and was paid for by "my labor and the labor of my children." Article 4622, R.S. 1911; Johnson v. Burford, 39 Tex. 242. The earning through labor of the children was community property, unless the children were emancipated. And it may not, it is thought, be legally said in the circumstances of the record that there was an emancipation of the children. And so any agreement between Mrs. Messimer and her children that if the children would work and assist their mother in paying for the land that she had already bought, which was in fact community property, she would later give them the land, would not change the relation of the property, and it would still be community property. Bank v. McWhorter, 179 S.W. 1147.

The court, it is concluded, did not err in holding that the deed to the appellants was made in fraud of the plaintiff's right. It appears that Mrs. Echols (formerly Messimer) was a nonresident and had no property unless it was an interest in this estate, and that she was indebted to the plaintiff for an accounting and settlement of the estate. The deed was executed February 9, 1914, and was, by the evidence and its recital, purely a deed of gift, and was made immediately after the grantors and grantees had knowledge that plaintiff was demanding an accounting and settlement. Article 3966, Vernon's Sayles' Statutes; Coughran v. Edmondson, 106 Tex. 540, 172 S.W. 1106.

We have carefully considered such remaining assignments as appellants may properly predicate error upon, and think they would not warrant reversal of the case. They are therefore overruled.

The judgment is affirmed.