Dailey v. Dailey ( 1935 )

J. L. Dailey and wife, Elizabeth Dailey, were divorced, after which Mrs. Dailey sued to have the community property partitioned. Upon the hearing the court determined that the property was susceptible of partition, hence directed an equal division, appointed three qualified commissioners, two of whom acted and filed their report, to which defendant (J. L. Dailey) filed objections. On trial of the issues presented, the court confirmed the report of the commissioners and entered decree accordingly, from which the defendant appealed by writ of error.

One contention is that certain real and personal properties belonging to the community estate of plaintiff and defendant, described in a pleading filed in the court below on October 13, 1933, were not partitioned or mentioned in the report of the commissioners; therefore, the report was incomplete. In answer to this objection, plaintiff filed in court a waiver of all her right, title, and interest in and to all and singular said omitted property, and requested the court to decree same to the defendant; whereupon, the court entered its decree divesting title to said property out of plaintiff and vesting same in defend ant In view of these proceedings, the objection was satisfied and, in future proceedings, the real and personal property involved are removed from further consideration.

Defendant objected that the report of the commissioners was unequal, unjust, and should be rejected and other commissioners appointed, in that the property composing the share set apart to him was materially overvalued, whilst the property set apart to plaintiff was materially undervalued. Among other property, the commissioners set apart to the plaintiff, at a valuation of $11.057, lots Nos. 5, 6, and 11 in block 1347B, city of Dallas, together with all improvements. This property formerly constituted both the residence and business homestead of the family. In support of his objection, defendant offered the testimony of three witnesses as to the value of this property. Mr. Rabinowitz testified that the lands, buildings, oil tanks, and equipment were of the market value of $20,000, and that the good will of the (oil) business was of the value of $10,000, making a total valuation of $30,000. Mr. Martin testified that the lands and houses were of the value of $14,225, and that the overhead and underground oil tanks, pumps, and equipment were worth $16,500, making a total valuation of $30,725. Mr. Staten placed a value on the real estate and houses, but not including the tanks and oil business equipment, at $8,937.50.

The only evidence as to value introduced by plaintiff was the testimony of Mr. Goodman, who valued the houses and lots at $7,500, and certain tanks, of the same or approximately the same size as the tanks installed on the property at $1,175, making a total valuation of $8,675. However, this witness was not questioned, nor did he testify as to the value of the four overhead 9,000-gallon capacity tanks valued by the witness Martin at $4,000; nor as to the value of the 2,600 gallon capacity coal oil tank valued by Martin at $2,500; nor as to the value of the two overhead 20,000 gallon capacity tanks on steel frames, valued by Martin at $5,000; nor as to the value of the pumps valued by Martin at $1,000; nor did the witness testify as to the cost of installing the tanks, in regard to which he gave testimony as to value.

The uncontradicted testimony of the witness Martin also shows that an unimproved lot 50x50 (item 13 of the commission's report) allotted to defendant at $500 was so inaccessible and hedged about with other lots as to be without any market value; that a series of 12 unimproved lots (item 20 of the report) allotted to defendant at $2,000 did not exceed $1,000 in value; that 143 acres of land in Dallas county (item 23 of the report) allotted to defendant at $7,685 was not worth in excess of $50 per acre, or $7,150; that the equipment of a filling station on leased property (item 16 of the report) allotted to defendant at $1,200 was not worth in excess of $200.

Without comment upon this testimony, we think it shows with reasonable certainty that the report was unequal and unjust to the defendant, and should have been rejected by the trial court and other commissioners appointed.

In view of certain matters mentioned in the discussion, that may or may not be material for the consideration of the commissioners in making a partition, we are moved to make the following observations: If, since partition was decreed, any property belonging to the community estate has been unavoidably lost, by foreclosure or sale in satisfaction of community debts, such loss would be that of the community, and any such should not be considered or partitioned by the commissioners. As provided in the decree of partition, the commission should take into consideration all judgments or other lien debts and interest therein, including taxes existing against the estate; also the value of the use and occupation of the property, and rents, if any, collected by either party, since the decree of partition should be taken into consideration in the adjustment of equities; but as general unsecured debts against the community estate, if any existed, were not disposed of or mentioned in the partition decree, they should not be considered by the commissioners; however, this statement will not be construed to prejudice either party paying any such debt, from asserting a lien on the share allotted to the other, for reimbursement for any sum paid over and above one-half the amount of such debt. Debts contracted by either party since the decree of partition was entered, are not a charge against the community estate, hence should not be considered by the commissioners in making partition.

If the commissioners should find that it is impracticable to allot shares of exact equal value, such inequality may be corrected by charging the share of greater value with a lien in favor of the share of less value with an amount sufficient to equalize the values, which shall constitute an incumbrance in the nature of a vendor's lien against the share of greater value, but shall not be considered a personal obligation. Moor v. Moor (Tex. Civ. App.) 63 S.W. 347; Moor v. Moor,31 Tex. Civ. App. 137, 71 S.W. 794.

The judgment of the lower court, confirming the report of the commissioners, is reversed and the cause remanded, with directions that other commissioners be appointed by the court, and the same proceedings had as in the first instance.

Reversed and remanded.

On Motion for Rehearing.