Morris v. Neie , 1948 Tex. App. LEXIS 1376 ( 1948 )

LONG, Justice.

W. H. Neie instituted this suit against Earl Morris in trespass to try title alleging ownership of an undivided one-half interest in two acres of land in Blocks Nos. 11, 12, and 13, of Clow’s Second Farm Addition to the town of Coleman. Defendant answered by a plea of not guilty and alleged that he was the owner of the entire interest in the property by purchase from the former wife of the plaintiff to whom said property was conveyed as her sole and separate estate. Upon a trial before the court, with the aid of a jury, judgment was entered decreeing that plaintiff and defendant were the joint owners of the property and that each owned an undivided one-half interest thereof, and that the property was not susceptible to partition. The court appointed a receiver and directed him to sell the property for cash at private sale. From this judgment, the defendant has appealed.

The controlling question presented is whether the property involved is the separate property of the former wife of the plaintiff.

Plaintiff and Clemmie Neie (now Mrs. C. D. Bull) were married on May 16, 1921. They were divorced on the 3rd day of March, 1945. The suit for divorce was filed by Mrs. Neie. In her petition she alleged that the property involved herein was the community property of herself and husband, W. H. Neie. The court, in its judgment granting the divorce, found that the property was community property of plaintiff W. H. Neie and his wife, and set it aside for the use and benefit of the wife and her two children as a home. Thereafter, Mrs. Neie married C. D. Bull and was his wife at the time of the trial of this case.

On the 19th day of March, 1947, Clemmie Neie Bull, joined by her husband, C. D. Bull, for a cash consideration of $2,500.00, conveyed to the defendant, Earl Morris, all their right, title and interest (which they guaranteed to be not less than a one-half interest) in and to the two acres of land involved in this suit.

On the 10th day of September, 1941, William Lobstein and wife conveyed the prop-perty involved to Clemmie Neie for a consideration of $1,000.00, of which $340.00 was cash and the further consideration that W. H. Neie had executed four vendor’s lien notes in the sum of $165.00 payable to William Lobstein, in which deed it was recited that the consideration was paid and secured to be paid by Mrs. Neie out of her own separate funds.

All property acquired by the wife after marriage by gift, devise or descent, is her separate property. Article 4614, Revised Civil Statutes, Vernon’s Ann.Civ.St. art. 4614. All property acquired by the wife during marriage, except that which is her separate property, is community property of the husband and wife. Article 4619, Sec. 1, Revised Civil Statutes, Vernon’s Ann. Civ. St. art. 4619, § 1.

The deed from William Lobstein to Mrs. Neie (now Mrs. Bull) recites that the consideration was paid and secured to be paid by the grantee out of her own separate funds. If this recital creates a presumption that the property conveyed is the separate estate of Mrs. Neie, nevertheless, such presumption is only prima facie and not conclusive. Kearse v. Kearse, Tex. Com.App., 276 S.W. 690.

The jury found that the original cash payment of $340.00 for the property was made from the proceeds of the sale of property inherited by W. H. Neie, and that W. H. Neie did not know at the time of the execution of the deed that said property was conveyed to Clemmie Neie as her separate property. These finding's have ample support in the evidence. The plaintiff overcame the presumption, if any, arising from the language in the deed that the property was paid for out of the separate funds of Clemmie Neie and by the evidence raised an issue of fact on that question which was by the jury, resolved in his favor. Plaintiff did not direct that the deed be made to his wife and did not know until long after its execution that the property was conveyed to her as her separate estate-. Mrs. Bull, formerly Mrs. Neie, never at any time claimed the property as her separate estate but at all times recognized that her former husband had a one-half interest therein. It is conclusively established that the defendant knew at the time he purchased the property that Mrs. Bull did not claim the property as her separate estate but that she recognized the fact that her former husband owned a one-half interest therein. This is established by the parol evidence and by the contract of sale between Mrs. Bull, joined by her husband, and the defendant. In such contract, Mrs. Bull and her husband agreed to sell to the defendant all of their right, title arid interest in and to the two acres of land with the further provision therein, “when second party shall have acquired the interest owned by Will Neie, first party shall have the right to remove from lot the brooder house and one cross-fence partition fence on east side.”

The notes given as part of the consideration by W. H. Neie for the purchase of the property involved were paid out of the community estate of W. H. Neie and his former wife, now Mrs. Bull. In view of the findings by the jury that the cash consideration for the property was paid out of funds inherited by W. H. Neie, and of the further finding by the jury that W. H. Neie, at the time of the execution of the deed from Lobstein to Mrs. Neie, did not know that said property was conveyed to Clemmie Neie as her separate estate, we are of the opinion that the property involved herein was the community property of plaintiff and his former wife. Therefore, the trial court did not err in refusing to vest title to the entire estate in the defendant. It is our opinion that the defendant acquired only an undivided one-half interest in the property under the deed from Mrs. Bull and her husband. Burruss v. Murphey, Tex.Civ.App., 5 S.W.2d 612; Janes et al., v. Gulf Production Co., Tex. Civ.App., 15 S. W.2d 1102; Strickland v. Baugh, Tex.Civ.App., 169 S.W. 181 (writ ref.); Pointer v. Pointer, Tex.Civ.App., 197 S.W.2d 504.

The judgment of the trial court is affirmed.