59 Tex. Civ. App. 224 | Tex. App. | 1910
This suit was brought by appellant against her husband, Douglas DuPerier, to recover the title and possession of lot No. 10, in block No. 73 of Van Wormer’s addition to the city of Beaumont. After the usual allegations in a suit of trespass to try title, the petition further alleges:
“Plaintiff further represents to the court that the property in controversy in this suit was conveyed to the defendant by Alfred DuPerier on the 12th day of July, 1902, by general warranty deed, for the consideration of $2400 cash; that after the defendant had acquired title to the property he desired to convey the same to his wife, the plaintiff herein, to be owned and held by her as her own separate estate; and the defendant sought the advice of a lawyer as to the manner in which title to the property could be passed from him to his wife, the plaintiff herein, so that she could own and hold same in her own right as her own separate estate; and the defendant was advised by an attorney that the only .valid way to effect a transfer of title to said property from, the defendant to his
Then follow allegations sufficient under the rule announced in Dority v. Dority, 96 Texas, 215, to entitle plaintiff to maintain this suit against her husband. The prayer of the petition is that plaintiff have judgment for the title and possession of the property, and that defendant be restrained from collecting rents therefor and from interfering with its management and control by the plaintiff.
Defendant answered by general denial and plea of not guilty.
The trial in the court below without a jury resulted in a judgment in favor of defendant, "that plaintiff take nothing by her suit.”
The evidence shows that plaintiff and defendant were married on January 12, 1901, and that the property in question was conveyed to defendant by his father, Alfred DuPerier, on January 12, 1902, by a deed which recites a cash consideration of $2400 paid by defendant. The undisputed evidence further shows that no consideration was in fact paid by the defendant for the property and it was in fact a gift from his father.
We adopt the following conclusions of fact filed by the trial judge:
"Shortly after said property was given to defendant, he and the plaintiff, who was then his wife, moved on to said premises and occupied the same and claimed the same as their homestead, and the same was in fact their homestead and remained their homestead up to the separation of plaintiff and defendant, as hereinafter mentioned.
“A little while prior to the execution of the deed by defendant and wife to H. P. Barry, hereinafter mentioned, the defendant and plaintiff had gone to the town of Erath, in the State of Louisiana, and they were temporarily residing at said place at the time of the execution of said deed to said Barry, but were then claiming the property in controversy as their homestead, and in fact intended at that time to return to said property and occupy the same as their homestead.
“At said time the defendant was indebted to divers persons, the exact amount of which indebtedness I do not know, but the same was somewhere between five hundred and a thousand dollars.
“I find that while plaintiff and defendant were so residing in the State of Louisiana, defendant’s father, who lived in Louisiana, and who knew of defendant’s indebtedness, became apprehensive that the property in controversy would be levied upon by some creditor, and that defendant would run the risk of having same subjected to forced sale, and that defendant’s father for this reason frequently counseled with plaintiff and defendant and advised them both to make such disposition with reference to said property as would keep the same from being subjected, or attempted to be subjected, to sale for defendant’s debts; and I find that defendant at first refused to abide by any suggestion made by his father, defendant claiming that the property was his homestead and not subject to execution; but
“That plaintiff and defendant did in fact convey said property to H. P. Barry by deed dated September 23, 1903, and that no consideration then passed or was intended to pass between said parties for said property, and that such conveyance was for the purpose as stated in the paragraph above.
“That H. P. Barry conveyed the property in controversy to plaintiff by deed on or about the 1st of October, 1903, and that no consideration of any kind was paid by plaintiff for said property conveyed by said deed.
“That the deed from plaintiff and defendant to H. P. Barry and the deed back from H. P. Barry to the plaintiff, were executed and delivered under and by virtue of a- previous agreement and understanding between plaintiff and defendant to the effect that the property should be conveyed by plaintiff and defendant to the said Barry and that the said Barry was to hold the same in trust and thereafter to convey the same to the plaintiff herein; and that it was the intention of plaintiff and defendant that the said Barry in making such conveyance to the plaintiff should make the deed sufficient upon its face to convey the property to the plaintiff as her separate estate; that is to say, that the said Barry should use such apt words as would be sufficient to make said deed in form a conveyance to the plaintiff for her sole and separate use; and that it was a mistake on the part of said Barry in making said deed to plaintiff in not using apt words as would made said deed upon its face a conveyance to the sole and separate use of plaintiff, and that said Barry fully intended that said deed should be in form sufficient to make the same a conveyance to the sole and separate use of the plaintiff.
“That the understanding with the said Barry with reference as to how his said deed to the plaintiff should read, was had solely with plaintiff, and that the said Barry was never consulted by defendant about such transaction; but the plaintiff, in having such understanding with said Barry, was acting with the consent of defendant and in accordance with the previous agreement between plaintiff and defendant.
“That it was never the intention of the defendant to give said property to the plaintiff by reason of his agreement to have the said Barry deed to show it upon its face, and that the plaintiff knew and
“That plaintiff and defendant are permanently separated, and that there is no reasonable probability of their ever living together as husband and wife again; that the plaintiff abandoned the defendant while they were temporarily residing in the State of Louisiana, and returned to her stepfather’s home in the State of Michigan, where she has continued to live to the date 'of this cause; but that plaintiff was warranted in abandoning defendant on account of his treatment, of her, and that such treatment would be just grounds in this State for a divorce, should the plaintiff apply for same.
“That the defendant has collected the rents upon the property in controversy during the entire time that plaintiff and defendant have been away from said property, and that the defendant has appropriated the amount so collected to his own use and benefit.”
TJnder appropriate assignments of error the appellant assails the judgment of the court below upon the following grounds:
First: Because the court having found that it was the intention of appellee that the deed from -Barry to appellant should on its face pass the title of the property to appellant in her separate right, the deed should be considered as containing apt words expressing such intention, and when so considered appellee will not be heard to say that it was not his intention that the title to the property should vest in appellant in her separate right.
Second: Because the evidence is insufficient to support the finding that it was the intention of the appellee and the appellant that she should hold the title in her separate estate in trust for the benefit of appellee.
Third: Because it having been the intention of appellee that the deed should convey the property to appellant as her separate estate, and the evidence showing that such conveyance was for the purpose of defrauding appellee’s creditors, he can not recover from appellant the property so intended to' be conveyed to her in fraud of his creditors.
We will consider these objections to the judgment in the order in which they are presented.
The deed from Barry to Mrs. DuPerier does not convey the property to her in her separate right, and on the face of the conveyance the title' is in the community estate. If the conveyance had been made directly from the husband to the wife, the title would prima facie have vested in her separate estate without any recitals i-n the conveyance evidencing such intention on the part of the grantor. The apparent title having been in the community under a deed to appellee executed subsequent to his marriage and which recites a
This construction can not, however; be placed upon the deed from Barry to appellant. When a third party conveys to the wife by a deed which does not in terms convey to her separate use, nor show that the consideration was paid out of her separate estate, the title so conveyed vests' prima facie in the community. If the consideration in such case was paid out of the wife’s separate estate, or if the intention of the grantor was to convey the property to the wife for her separate use and benefit, these facts could be shown, and in such ease the title would vest in the separate estate of the wife.
Appellant concedes that upon the face of the record the title to the property is in the community, and that to entitle her to recover in this suit she must show that appellee intended by the conveyance to Barry and from Barry to appellant to give her the property in her separate right. The trial court finds that this was not the intention of the parties, but their intention was to have the title to the property placed in appellant merely for the purpose of preventing any attempt upon the part of appellee’s creditors to subject it to the payment of his debts; and we think this intention must determine the rights of the parties in' the property.
If the deed had by its terms conveyed the property to appellant in her separate right, still it might be shown that she took the title upon an express trust and held it for the benefit of appellee or for the use and benefit of the community estate; but we do not think the rights of the parties are the same as they would be had the deed conveyed the property to appellant’s separate use and benefit. In such case, no ’ express trust being shown, appellee would be estopped to claim that he did not intend to give the property to his wife. The deed to appellant does not convey the property to her separate use, and it seems to us that it would be an unreasonable extension of the doctrine of estoppel to hold that because appellee intended it should contain such recital he will not be heard to say it. was not his intention to give her the property. Estoppel arises from words or acts and not from intention alone. Hpon the facts found by the trial court appellant’s contention is, in effect, this: “While the deed on its face gives me no title to the property and it was not the intention of my husband that I should have the property, yet because he did intend that the deed should place the apparent title in my separate estate, the property is mine.” We do not think this contention is sound.
The second objection to the judgment is also untenable. The testimony was conflicting upon the question of the intention of the
Appellee had no intention of defrauding his creditors in making said conveyance. The property was his homestead and he had no intention of abandoning it at the time the conveyance was made. Under these facts if the title had been in fact placed in the appellant for the purpose of protecting the homestead, appellee would not be. denied the right to recover the property thus held in trust for his benefit. Newman v. Newman, 86 S. W., 635; Rivera v. White, 94 Texas, 538.
We think the judgment of the court below should be affirmed, and it has been so ordered.
Affirmed.
Writ of error refused.