189 S.W. 111 | Tex. App. | 1916
On June 22, 1912, Mrs. Dora Tabor was duly adjudged insane by the county court of Wichita county. As a part of that decree the court ordered that she be conveyed to one of the asylums of the state for the insane. She was then placed in the county jail by the sheriff, presumably to await accommodations in the asylum, as it is a matter of common knowledge that such institutions are inadequate to care for all such wards of the state.
On June 27th following, S. H. Tabor executed a bond payable to the state, conditioned that he himself would restrain and properly care for his wife as long as her mental unsoundness should continue, or until he should return her to the custody of the sheriff; and upon the execution of that bond she was discharged from the jail and her custody intrusted to her husband.
On August 6, 1912, S. H. Tabor returned her to the custody of the sheriff by reason of the fact that her mental condition had grown worse, and he was unable to properly care for her. Thereupon she was again incarcerated in the county jail, and there confined until September 23, 1912, when she was finally discharged, and she has been of sound mind ever since.
On September 4, 1912, during her last incarceration in the county jail and while she was insane, S. H. Tabor sold all of lot No. 1 to M. H. Moore by a deed of conveyance *112 executed by him alone and without the signature and acknowledgment of his wife, as required by the Constitution and statutes for a valid conveyance of the homestead. It is reasonably apparent from the record that while Mrs. Tabor was confined in the county jail, and at the time of the sale to M. H. Moore, S. H. Tabor, with the two minor children of himself and Mrs. Dora Tabor, continued to occupy and claim the same property as a homestead, which had theretofore been the homestead of the family, and which had been noted above. Lot No. 2, upon which was situated the dwelling house of the family, was never sold, and when Mrs. Tabor was released from the county jail she returned thereto and has occupied it as her home ever since.
The total consideration for the conveyance from S. H. Tabor to M. H. Moore was $565, of which amount $350 was evidenced by seven promissory notes executed by the grantee to the grantor for $50 each; $100 was paid in cash, and $115 was paid by the cancellation of an account in that sum then due M. H. Moore, who was a physician, for professional services rendered S. H. Tabor and his family during the year 1912. Later S. H. Tabor executed a release of the vendor's lien on the lot in consideration of the full payment of said notes. M. H. Moore then sold the lot so purchased from S. H. Tabor to Charles Hill, who in turn sold it to W. M. Priddy. All the deeds mentioned above were duly recorded.
S. H. Tabor died November 1, 1913. On November 19, 1914, Mrs. Dora Tabor, for herself and as next friend for Etta May Tabor and Myrtle Alice Tabor, minor children of herself and S. H. Tabor, instituted this suit against W. M. Priddy in the form of trespass to try title to recover all of lot No. 1 so sold to M. H, Moore by S. H. Tabor. Plaintiff also pleaded specially that defendant was claiming title under some character of deed to him and his vendors executed by S. H, Tabor, but that such conveyance was invalid by reason of the fact that at the time of the execution of such deed by S. H. Tabor the property was a part of the homestead of S. H. Tabor and his family, and the deed was never executed by his wife, Mrs. Dora Tabor.
The defendant Priddy, in addition to a plea of not guilty and a plea of innocent purchaser for value, and a plea of valuable improvements placed upon the lot by him in good faith, interpleaded his vendor Charles Hill, who likewise interpleaded his vendor, M. H. Moore, each of said vendees praying judgment on the warranty of title to him. Hill and Moore each filed an answer adopting the pleas filed by Priddy. By supplemental petition plaintiff denied the facts set forth in all those pleas.
Lot No. 1 was 170 feet in depth, a portion of which, 105 feet in depth, measured from the front and the entire width of the lot had been separated from the remainder by a fence and had been rented out. Plaintiffs were denied a recovery for that portion of the lot, but judgment was awarded in their favor against all defendants for the remainder, which was the rear portion of the lot, and also for rents. Judgment was also rendered on the warranties of title given by Moore and Hill in favor of their respective vendees. Defendants Moore and Hill have appealed from the judgments in plaintiffs' favor.
No findings of fact were filed by the trial judge who tried the case without the aid of a jury, but it is apparent that the recovery awarded was upon a finding, which was amply supported by the evidence, that the portion of the lot so recovered by plaintiffs was a part of the homestead of S. H. Tabor and his wife at the time of the sale to M. H. Moore, and that as the deed to Moore by S. H. Tabor was not executed and acknowledged by Mrs. Dora Tabor, it conveyed no title. Whether that conclusion was correct is the principal question presented by appellants here.
In Shields v. Aultman-Miller Co.,
"In the case under consideration the property was community property; and the homestead at the time of the sale, and was never abandoned, according to the findings of the jury upon the special issues submitted. Had the wife been sane, her consent to its alienation, expressed in the way provided by law, must have been obtained, in order to give the sale validity. Her personal consent was, rendered impossible by her insanity. To have resorted to the guardianship proceeding would not have obtained her consent, and, unless the husband had authority to separately convey, the property was hopelessly tied up in his hands. It is an old-established maxim that the law never requires impossibilities. We think it also clear that courts ought not to construe laws regulating the conveyance of property so as to unnecessarily and unreasonably interfere with personal proprietorship therein. It is admitted in the pleadings of the parties, and an unquestioned fact in the case, that the wife was hopelessly insane when the property was occupied as a homestead; that she was in an insane asylum in St. Louis at the time it was sold by the husband; and that she has remained there, and continued insane, since. Under these conditions we think the husband had the right to sell the property."
As a second ground for sustaining the validity of that conveyance the court found as a fact that after the conveyance was executed the husband permanently abandoned the *113
property as a homestead, and that the abandonment had continued for a number of years before the acquisition of the property by Aultman-Miller Co., who purchased it in good faith and for value, and held that after such abandonment the deed executed by the husband before the abandonment became effective; citing in support of that conclusion Marler v. Handy,
In Gilley v. Troop,
Article 3594, 2 Vernon's Sayles' Texas Civil Statutes, reads:
"Where the wife dies or becomes insane, leaving a surviving husband and child, or children, the husband shall have the exclusive management, control and disposition of the community property in the same manner as during her lifetime, or sanity; and it shall not be necessary that the insane wife shall join in conveyances of such property, or her privy examination and acknowledgment be taken to such conveyances, subject, however, to the provisions of this chapter."
In order for the husband to avail himself of the authority given by the foregoing statute, other articles of the same chapter of the statutes require him to make application to the county court therefor, to return an inventory and appraisement of such community estate, and to execute a bond in a sum equal to the value of the entire estate.
In Gibson v. Pierce,
In the present suit, the good faith of the husband in the sale to M. H. Moore, was not questioned; in other words, there was no contention that he made the sale for the purpose of defrauding his wife of her community or homestead rights in the property.
We are of the opinion that the conclusion reached in the case of Shields v. AultmanMiller Co., and in Gilley v. Troop, discussed above, in effect, that the insanity of the wife, even though the same was of a permanent character, would of itself authorize the husband alone to convey the homestead, was unsound. The denial of a writ of error by our Supreme Court in each of those cases does not necessarily imply an approval of that conclusion by the Supreme Court, since, as shown already, the decision in each of those cases was predicated also upon a finding of fact that the husband had abandoned the property as a homestead; in the Shields Case the abandonment occurring after the deed was executed, and in the *114 Gilley Case the abandonment occurring before the execution of the deed in controversy.
Section 50 of article 16 of our Constitution expressly prohibits the sale of the homestead by the husband without the consent of the wife, given in such manner as may be prescribed by law; and by statutory enactment in order to convey the homestead it is required that the wife shall Join with the husband in the deed thereto, and to privily acknowledge the same before an officer authorized to take acknowledgments. To give effect to the deed of S. H. Tabor in controversy in this suit clearly would be to violate the express provisions of the Constitution and statute, and, in order to uphold it, it would be necessary to bring it within some authorized exception, if any there be, to those enactments. By a long line of decisions of this state, beginning with Wright v. Hayes,
"She and her children are entitled to a support from the property; and if the husband is absent, there is no reason or rule of law that would prohibit the wife from making a contract to meet the necessities of the case. It would be a strong case that would permit her to go further."
In Heidenheimer v. Thomas,
"If such a rule existed, it could only spring from the necessity of the family to have a support; to which the sale, in the case under consideration, could in no manner have contributed. Upon the contrary, such a sale would have deprived the family of the only piece of property which could have contributed to its support."
The cases of Shields v. Aultman-Miller Company and Gilley v. Troop, are the only decisions in this state which we have found holding that the insanity of the wife would of itself authorize the husband to execute a valid conveyance of the homestead before the same is abandoned as such, and those decisions are contrary to all the decisions in other states which we have been able to find upon that question. In 21 Cyc. 541, discussing the sale of homestead, it is said:
"If the husband or wife is insane when the joint conveyance or mortgage is executed, the conveyance is invalid."
Several decisions in states other than Texas are cited in support of that text, one of which is Thompson v. N.E. Mortgage Security Co.,
"The purpose of the statutes in securing an exempt homestead to every resident of the state, and in requiring the wife's voluntary signature and assent to any alienation thereof when belonging to the husband, is to protect the wife, and through her the family, in the enjoyment of a dwelling place. Turner v. Bernheimer,
Numerous decisions are cited in the opinion to support the holding so expressed. In Withers v. Love,
In the present suit there was evidence sufficient to sustain a finding that the sale of the lot in controversy by S. H. Tabor to M. H. Moore was not made for the purpose of paying the community debt of $115 then owing to Moore for professional services; and if that were the controlling issue in the case as it was in the decision by the Supreme Court, in Pierce v. Gibson, such a finding would be presumed in support of the judgment. But even though the evidence had shown, and the trial court had found, that said sale was made for the purpose of paying that debt, the rear portion of lot No. 1, *115 which constituted a part of the homestead, and judgment for which was rendered in favor of Mrs. Dora Tabor and her children, was not subject to the payment of that account. Hence it cannot be said that the sale of that part of lot No. 1 was necessary, in a legal sense, to pay that debt. Nor was there any showing in the evidence that any part of the consideration was necessary for the support of the family, nor that the husband sold the same for the purpose of reinvesting the proceeds in another homestead. The case merely shows a sale of a part of the homestead by the husband alone, without being joined in the sale by his wife, and without first abandoning the property as a homestead and without any showing of any necessity therefor. The sale in controversy was clearly in violation of the Constitution and statutes, and according to the reasoning of the Supreme Court in Heidenheimer v. Thomas, and authorities there cited, it could not, in any event, be sustained in the absence of a showing of some necessity therefor, and even though it could be said that necessities, such as indicated above, would create a proper exception to the constitutional and statutory restrictions against his power to sell the homestead without the consent of his wife, the case does not come within any such exception, and for the reasons above given we hold that the sale of the rear end of lot No. 1, which constituted a part of the homestead, was invalid, and, accordingly, the opinion heretofore rendered by us, in which we reached a conclusion adverse to the foregoing, is withdrawn. That conclusion renders it necessary to dispose of other assignments of error presented by appellants which were not considered upon the original hearing, and those assignments will now be discussed.
The trial of the case was on the 25th day of May, 1915, at which time a judgment was rendered in favor of plaintiffs for a strip off the rear end of lot No. 1, the lot in controversy, 85 feet in length and the width of the lot. The court also at that time rendered judgment in favor of Priddy against his vendor, defendant Hill, for $75, and in favor of Hill against defendant Moore for the same sum; such judgments over being upon the respective covenants of warranty of title in the deeds of conveyance executed by the defendants to each other. Defendants Priddy, Moore, and Hill all tiled motions to set aside that judgment and grant a new trial of the case.
Those motions were heard on July 20, 1915, during the same term of court at which the judgment had been rendered. Upon that hearing the trial judge, upon his own initiative and over the objection of defendants Hill and Moore, heard further testimony, after which he reformed the judgment theretofore rendered so as to reduce the portion of the lot in controversy awarded to plaintiffs from a length of 85 feet, as originally decreed, to a length of 65 feet, and so as to increase the amounts of judgments over in favor of defendant Priddy against Hill to $275, and $16.50 interest thereon, and in favor of Hill against Moore to $275, with $24.75 interest thereon; such judgments over being upon the respective warranties of title given to those parties in the respective sales by one to another.
It appears that the court had intended to give judgment for plaintiffs for all that portion of the lot in controversy lying north of a fence separating that portion from the remainder upon which the rented house had been erected, and which remainder was awarded to defendant Priddy; and just where this fence was located was one of the issues upon which additional testimony was heard; the only other issue upon which additional testimony was heard being the relative value of the strip 65 feet in length off of lot No. 1, that was finally awarded to plaintiffs, as compared to the consideration paid by each of the defendants for said lot in its entirety. Bills of exception contained in the record recite that at the time the court announced his intention to hear further testimony, he stated that he would overrule the motions of all the defendants for a new trial, but would hear further testimony as to the value of the land adjudged to plaintiffs, but upon no other issue. The bills recite further:
"Thereupon defendants Hill and Moore objected to reopening the case and the introduction of new testimony upon that issue alone, for the reason that said action by the court was in effect the granting of a new trial upon that issue alone; but said defendants Hill and Moore asked that if the judgment was set aside on any issue whatever that a new trial be granted as to all parties and all issues."
And further that:
The "defendants Hill and Moore offered to and could have proved by the defendant M. H. Moore that when he bought the property in controversy from S. H. Tabor that said Tabor owed him a large bill of about $165 for medical services, and that said Tabor owned no other property except the lot in controversy and the house and lot on which he lived, and that the witness Moore was mistaken in his testimony upon the trial of this cause on the 26th day of May, 1915, when he testified that the said Tabor had other property, as said property had been sold by the said Tabor prior to that time, and the said defendants Hill and Moore also offered to and could have proved by the witness Sam Wisdom that the time the said S. H. Tabor sold the lot in controversy to M. H. Moore that he (Tabor) owed the bill to said Moore, and in addition thereto the said Tabor owed large sums for groceries and other things, and that all such bills and accounts were community debts of the said Tabor and his wife, who was then insane, and that there was no property, either community or separate, owned by Tabor with which said debt could be paid, except the homestead and the lot in controversy, and that the said Tabor had no means of paying same except by a sale of said property, which said testimony was offered by the defendants Hill and Moore after the court had reopened the case upon the issue of valuation, and in effect had granted a new trial to defendant Priddy upon that one issue, but the *116 court refused to hear said testimony of the said witnesses M. H. Moore and Sam Wisdom, as above set out, and refused to permit said witnesses to be sworn, and announced that he would not hear said testimony."
Error has been assigned to the rulings of the court in admitting such additional testimony, and to the refusal of further testimony offered by appellants and recited in the bills of exception, as shown above.
It thus appears that the only objection to the admission of the additional testimony heard was that such action was, in effect, the granting of a new trial upon one issue alone, which the court had no authority to do. There was no claim made that appellants could rebut such additional testimony by other evidence, or that appellants desired so to do, nor was there a request for time to produce further testimony upon the issue of the relative value of the strip finally awarded to plaintiffs as compared to the consideration paid by defendants for the lot as a whole. In other words, the objection urged merely challenged the legal authority of the court to hear such additional testimony.
Independent of statutory provisions for the correction of judgments, it is a familiar rule of common law that courts retain complete control over judgments during the terms at which they are rendered, and, while such terms continue, may set aside, correct or reform them. Henderson v. Banks,'
"A motion to reopen a case for the purpose of introducing further evidence in the cause is addressed to the sound discretion of the court, which is not subject to review, unless there has been an abuse thereof."
Again in the same volume on page 1368:
"It is discretionary with the court what further evidence it will hear after the case has been reopened. Thus if the court grants leave to introduce further specific testimony, it is discretionary with the court whether it will permit the introduction of other evidence than that specified, and, unless an abuse of this discretion appears, refusal to permit evidence other than that specified is not ground for reversal."
See, also, Riverside Portland Cement Co. v. Masson,
As noted already, the trial was by the court without a jury, and the correction and reformation of the judgment was at the same term of court during which the original judgment was rendered; and as appellants' objection to the admission of further testimony was confined alone to a challenge of the authority of the court to thus reopen the case in part, and as they did not offer other evidence in rebuttal of that heard and made no showing that such testimony could be procured, it clearly appears that the trial judge did not abuse the discretion vested in him to hear such additional testimony. In the absence of any showing to the contrary, it must be presumed that such further hearing was necessary to the ends of justice, and that the necessity arose from a lack of sufficient evidence upon those issues, or that the action of the court in hearing it was induced by some contention presented by appellants' motion for a new trial, which was then presented by appellants, but which does not appear in the record before us. 38 Cyc. 1361, 1362.
In view of our conclusion expressed above upon the issue of the right of S. H. Tabor to sell a part of his homestead without being joined in the deed by his wife, the refusal of the court to hear the further testimony offered by appellants at the time the judgment was reformed and corrected did not constitute reversible error, since, even though it be accepted as true, it could not change those conclusions. If such testimony was true, then S. H. Tabor was insolvent, owned no property except his homestead, which was not liable for any of the debts, and had no means of support for himself, his insane wife, and two young children, except his own labor. In our opinion such proffered testimony would tend to support, rather than militate, against our conclusions upon that issue. Heidenheimer v. Thomas,
For the reasons indicated, appellees' motion for rehearing is granted, our former judgment of reversal is set aside, all of appellants' assignments of error are overruled, and the judgment of the trial court is affirmed.