174 S.W. 688 | Tex. App. | 1915
"If you find that the plaintiff Mrs. Myrtle B. James, and defendant, on or about the 27th day of February, 1909, entered into a separation agreement whereby the custody of their said children was to be governed and controlled, and if you further find that on the 14th day of December, 1912, the date of the sale of said tract of land to G. W. Arledge, said agreement as to the custody and care of said children was still in force and effect, and if you find that said plaintiff, Mrs. Myrtle B. James, had breached said agreement prior to the execution of said deed, then you will find for the defendant."
Verdict was returned and judgment rendered in favor of Golson.
Certain assignments complain of the general charge of the court and the refusal of a special instruction. The record fails to disclose that exceptions were taken, as is required by chapter
The fifth assignment reads:
"Because the verdict of the jury is contrary to the law and evidence in this: That all the evidence showed that the intention of the contracting parties was that plaintiff Mrs. Myrtle B. James should have received, by that certain deed conveying 5.83 acres of land, the wells and other improvements, situated near the northwest corner of section 43, block 53, public school land, Culberson county. Tex., and that, such being the intention of the parties, she acquired a good title thereto as between herself and the defendant, and that when he sold said tract of land, together with said improvements, to G. W. Arledge, he deprived her of the value of said property, and she was entitled to such damages as the evidence showed she sustained by virtue of the loss of said property, and the original separation agreement entered into by and between said parties on February 27, 1909, not being a continuing agreement as respects the care and custody of their said children, same having been abrogated and replaced by a decree of the district court of Reeves county, Tex., and said deed having been executed for and upon other and different considerations, the plaintiffs were entitled to some damages, and the failure on the part of the jury to return a verdict in their favor is not supported by the great weight of the evidence, and is contrary to the evidence, and all the evidence, in the case."
It will be seen from the facts recited that the separation agreement was not abrogated by the court's decree, but upon the contrary, it was recognized and confirmed. It expressly recognized the right of each of the parties to the custody of the children. The defendant's right to partial control and custody of the children was a material part, if not the whole consideration for the lands conveyed. That it was a continuing right in Golson, and a continuing obligation upon Mrs. James' part to observe it, there can be no doubt. The agreement, confirmed by the court, meant that the parties were to have alternate possession of the children for periods of 12 months, until they became of age. Plaintiff, having breached the agreement by removing the children from the state, where the court's decree could not be enforced, thereby precluded herself from recovering damages for the loss of the particular 5.83 acres containing the improvements. A verdict might properly have been instructed for defendant.
Affirmed.