11 S.W.2d 350 | Tex. App. | 1928
Appellee, the father of appellant Bertha Luna, instituted this suit against appellants in trespass to try title to *351 45 acres of land in Dallas county. He claims the land in controversy as his separate estate on two theories: First, because of a verbal gift of the property by his mother to him in 1874, five years prior to his marriage to Ella Johnston deceased, the mother of Bertha Luna, in 1879; and, second, by reason of a deed executed by his mother in 1883, four years after he married, conveying the property to him for a recited consideration of $500 paid. Appellee alleged that the deed from his mother to him was to carry out the verbal gift to him made some nine years before and that as a matter of fact the $500 recited in the deed was not paid.
Appellants answered by a number of special exceptions and a plea of not guilty. On the trial appellee was permitted, over objection, to testify to the verbal gift of the land to him by his mother in 1874, and also permitted, over objection, to testify that the deed in 1883 was a deed of gift and that the $500 recited therein as being paid was not in fact paid, and that no consideration was paid by him or his wife for said land. At the conclusion of the testimony the court instructed the jury to return a verdict for appellee.
Appellants complain of the action of the trial court in permitting appellee to testify to the conversation he had with his mother with reference to the gift of the property, and with reference to the fact that the land was conveyed to him without any consideration being paid, on the ground that said testimony was prohibited by article 3716 of the Revised Statutes, which prohibits a party from testifying relative to a transaction with a deceased person in a suit by or against executors, administrators, guardians, heirs or legal representatives of the decedent. We overrule these assignments. The identical question involved here, under almost the same state of facts, was raised in Wootters v. Hale,
Appellants complain of the action of the trial court in permitting Mrs. H. B. Johnston, the sister-in-law of appellee, to testify with reference to verbal statements of appellee's mother regarding said property, on the ground that same was inadmissible by virtue of said article 3716 of the Revised Statutes. There was no error in the court's overruling the objection urged. Mrs. H. B. Johnston was not a party in any way to this suit and her interests could not in any way be affected by the result thereof.
Appellants complain of the action of the trial court in refusing to submit to the jury the issue as to whether the property was appellee's separate estate. Appellants contend that the evidence was sufficient to raise said issue and that, therefore, the trial court was not authorized to withdraw same from the jury. We sustain these assignments. The law seems to be well settled that, where a deed to real estate is made to either spouse during coverture, same is presumed to be community property, and under the language of the present statute (article 4619), this presumption will prevail, "unless the contrary be satisfactorily proved." Henninger v. Pickren (Tex.Civ.App.)
"All property acquired by either the husband or wife during marriage, except that which is the separate property of either, shall be deemed the common property of the husband and wife; and all the effects which the husband and wife possess at the time the marriage may be dissolved shall be regarded as common effects or gains, unless the contrary be satisfactorily proved."
The deed which conveyed the property in question to appellee was executed five years after he and his wife were married, and recited a cash payment of $500. A recitation of payment in a deed is prima facie evidence that the amount named therein was actually paid, and the burden is upon the person attacking same to show a different consideration. Russell v. Beckert (Tex.Civ.App.)
For the error indicated, the judgment of the trial court is reversed, and the cause remanded.
