90 S.W. 485 | Tex. | 1906
On the 3d day of May, 1902, Florence L. Taylor instituted this suit in the district court of Sherman County against J.W. Taylor and John Sparks, to recover from them seven sections of land in controversy in this suit. At a subsequent date, not important to name, the original petition was amended, and T.S. S.D. Meador, composing the firm of Meador Brothers, were made parties defendant to the suit. The plaintiff's petition is quite voluminous, and, in the view we take of the case, it is unnecessary to state its contents more fully than to say that she claimed as against J.W. Taylor, who was her husband, and the other defendants who claimed under him, that the property in controversy was her separate property, and that J.W. Taylor had induced her to furnish him money with which to acquire *419 the said property under the promise that he would take the deed in her name; but, instead of complying with this promise, he took the deed in his own name, sold a greater part of the property to other persons, and conspired with John Sparks and Meador Brothers to defraud her out of her rights in the said property; and, to accomplish that purpose, J.W. Taylor made a deed to Sparks on the 1st day of March, 1902, and Sparks subsequently conveyed the same property to Meador Brothers. The pleadings of both plaintiff and defendants were sufficient to authorize the introduction of evidence to establish the following facts, and there is evidence in the record which tends to prove the facts hereinafter stated:
On the 16th day of June, 1900, J.W. Taylor, being then unmarried, entered into a written contract with Josiah Crosby and his wife, Josephine Crosby, for the purchase of thirty sections of land in Sherman County, the purchase price being $9,600, of which Taylor at the time paid $1,000 in cash. Afterwards, and in the same month, J.W. Taylor and the defendant in error were married in the state of Michigan; the wife's residence theretofore being at Toledo, Ohio. Mrs. Taylor owned valuable property in Toledo, Ohio, which was her separate estate. Taylor and his wife returned to El Paso, in El Paso County, Texas, and lived together for about sixty days, at the end of which time they separated, and she returned to Ohio. In a short time after that Taylor went to Ohio, where he accomplished a reconciliation with his wife, and induced her to execute a mortgage upon her real estate in Toledo to secure a note for $5,000, signed by himself and her, payable to a bank in that city, for the purpose of getting money to discharge the balance of the indebtedness on the land purchased from Crosby and wife. The $5,000 was raised upon the note and turned over to Taylor. In order to induce his wife to execute the mortgage and the note, Taylor represented to her that he would pay off the balance of the purchase money on the land, using the money procured by her for that purpose, and would take the title to the said land in her name. The parties returned to El Paso, and Taylor paid off the balance remaining of the purchase money due to Crosby and wife, and, on the _____ day of November, 1900, Crosby and wife conveyed the thirty sections of land to Taylor. Taylor sold out all of the land except seven sections, without informing his wife of the fact. In February, 1902, Taylor and his wife again separated, and she instituted a suit for divorce against him on the 1st day of March, 1902, in the district court of El Paso County, but Taylor, being absent from the county, was not served with citation for some days thereafter. In the petition for divorce Mrs. Taylor claimed a partition of the property which belonged to herself and her husband, and sued out an injunction to restrain him from selling any of that property. He was notified of the injunction by a message sent to Stratford, in Sherman County, on the 3d day of March, 1902. The injunction also embraced the Lowden National Bank, of El Paso, and restrained it from delivering to Taylor any papers or money in their possession belonging to the said Taylor and wife, or either of them.
On the 15th day of February, 1902, C.F. Rudolph, who was authorized by J.W. Taylor to sell the land in controversy, entered into a written *420 contract with Meador Brothers to sell to them the seven sections of land, for the sum of $6,798.50, of which amount Meador Brothers paid $100 in cash, and agreed to pay the balance so soon as an abstract of title was furnished, showing a good title in Taylor to the land, and when Taylor should sign and deliver a warranty deed to them for the seven sections of land. On the 25th day of February, 1902, C.F. Rudolph wrote a letter to T.M. Wingo, the cashier of the Lowden National Bank, at El Paso, stating in effect that he inclosed therewith a deed for the seven sections of land from J.W. Taylor to Meador Brothers, and also inclosed a draft for $5,659.27, and that when Taylor should execute the deed the draft would be credited to his account or order, and the deed sent by the bank either to Rudolph or to Meador Brothers, as the latter might direct. Meador Brothers directed the deed to be sent to them. This letter was accompanied with an abstract of the title and sent to Meador Brothers, instead of the bank. When Meador Brothers received the letter and abstract they submitted the papers to W.O. Davis, an attorney at Gainesville, who pronounced the title good, and Meador Brothers then procured a draft for the amount named in the letter from a bank at Saint Joe, in Montague County, on a New York bank, and inclosed it with the deed and the letter of Rudolph's to the Lowden National Bank, at El Paso, which was received by it in due course of the mail.
On the 1st day of March, 1902, J.W. Taylor was in Stratford, Sherman County, and Rudolph informed him of the contract for the sale of the land to Meador Brothers, when Taylor stated that he had already sold the land to John Sparks, and on that day he made the deed to Sparks for the land, which was recorded in Sherman County on the same day. Taylor said that he would endeavor to get Sparks to convey the land to Meador Brothers, so as to fulfill the contract which Rudolph had made; and in pursuance thereof Sparks did, on the 18th day of April, in the same year, make a deed for the land to Meador Brothers, and sent it to the Lowden National Bank, at El Paso, with instructions to place the money for the purchase of the land to his credit, which that bank did. Rudolph had instructed the bank to pay the money over to Taylor when the deed should be executed and delivered as shown by the letter before given, and Taylor instructed the bank that when Sparks should deliver his deed to the bank conveying the land to Meador Brothers, it should pay the money to Sparks.
Meador Brothers did not know Sparks in the transaction. On the 26th day of April, 1902, Wingo, the cashier of the bank, telegraphed to Meador Brothers at Saint Joe that Sparks' deed was in the bank; to which Meador Brothers replied, inquiring as to what Sparks had to do with the transaction. The bank then telegraphed that "Taylor deeded to Sparks and Sparks to Meador Brothers." This was on the 28th day of April, 1902, and soon thereafter one of the Meador Brothers went to Stratford to look into the matter, and learned that a suit in favor of Mrs. Taylor against J.W. Taylor and John Sparks, for the recovery of the land, was pending in that county. On the 9th day of May, 1902, the bank, upon the request of Sparks, remitted to him the money Meador Brothers had paid for the land. *421
Meador Brothers did not pay Rudolph's commission, who instructed the Lowden National Bank to hold the deeds from Taylor to Sparks and from Sparks to Meador Brothers until he should direct it to deliver them. The deeds were not delivered until some time in November, 1902, after Meador Brothers had knowledge of this suit.
Citation had not been served on Taylor in the suit for divorce at the time he executed the deed to Sparks; therefore the doctrine of lis pendens does not apply, and it is unnecessary to pay further attention to it. Smith v. Cassidy,
It is likewise claimed that the deed from Taylor to Sparks was void under article 2983 of the Revised Statutes, which reads as follows: "On and after the day on which the action for divorce shall be brought, it shall not be lawful for the husband to contract any debts on account of the community, nor to dispose of the lands belonging to the same; any alienation made by him after that time shall be null and void, if it be proved to the satisfaction of the court that such alienation was made with a fraudulent view of injuring the rights of the wife." It is unnecessary for us to construe that statute, for the reason that the deed was made and recorded on the same day the suit was filed, and the evidence does not show that the petition was filed at an hour prior to the making and recording of the deed. Clearly it could not be held that a deed delivered prior to the filing of the petition for divorce would be void under that statute, and if the plaintiff claims that the suit was in fact filed before the deed was made, she should have established that fact by evidence.
Meador Brothers have the legal title, and Mrs. Taylor is setting up an equity in the land growing out of a trust relation between her and J.W. Taylor. To entitle her to prevail against Meador Brothers, the evidence must show that the latter are not bona fide purchasers. Barnes v. Jamison,
There is no evidence in the record which tends to prove either want of good faith on the part of Meador Brothers, or that the consideration paid by them was not valuable, or that it was inadequate. On the contrary, it appears from the evidence that Meador Brothers took the same precaution which is ordinarily observed by purchasers of real estate to ascertain the true character and condition of the title which they were purchasing; and they had every reason to believe, and evidently did believe, that they would in this transaction get a good title to the land. The question of notice to Meador Brothers depends upon the time when they parted with their money in such manner as to place it beyond their control; Meador Brothers claim that payment was made before April 26, 1902, which is strongly contested by counsel for Mrs.Taylor, who contend that the money was not paid until the bank remitted it to Sparks by the draft on the 9th day of May, 1902, prior to which time Meador *422
Brothers had notice of the pendency of this suit. The evidence in this case shows that Meador Brothers, through Rudolph, deposited in the Lowden National Bank, at El Paso, a draft for $5,659.27, to be paid to Taylor when the latter should execute and deliver to the bank a deed for the land in controversy. Taylor having sold the land to Sparks, induced Sparks to make a deed to Meador Brothers and to receive from the bank the money on deposit to be paid to Taylor. Sparks, in compliance with Taylor's request, made the deed to Meador Brothers, conveying the land to them, and directed that the money should be placed to his credit. Taylor had also directed the bank to place the money to Sparks' credit when he should deliver to it the deed from himself to Meador Brothers. In this transaction Taylor substantially complied with his agreement made through Rudolph, to make and deliver to the bank a deed conveying the land to Meador Brothers, and Taylor was then entitled to receive the money under the former agreement. (Burks v. Watson,
There is no evidence whatever which tended to show that Meador Brothers had notice of the claim of the plaintiff prior to the 26th of April, 1902, nor that they had notice of any fact or circumstance which would put them on inquiry as to her title to the land, which inquiry would, if pursued, have given to them information as to her claim. It follows that Meador Brothers were bona fide purchasers of the land, and, to the extent that they had paid the purchase money before April 26, 1902, were entitled to protection against the equity of Mrs. Taylor.
John Sparks and J.W. Taylor joined in an application for writ of error in which they present a number of assignments, some of which we deem it proper to discuss in view of another trial.
The first assignment challenges the ruling of the trial court in excluding from the jury evidence of John Sparks which was taken by deposition under the following circumstances. The plaintiff in the case filed interrogatories to John Sparks under article 2293 of the Revised Statutes, and, when he had answered the interrogatories propounded to him, his attorney, who was present, asked him certain questions in order to call out statements concerning matters pertinent to the issues to be tried and his answers were taken down with the questions, certified to by the notary public, and returned with the deposition. There was no motion to quash the deposition, but after the plaintiff had read the *423 answers to the written interrogatories, Sparks offered in evidence the answers which he had made to the interrogatories propounded to him by his attorney, to which counsel for Mrs. Taylor objected because: "(1) the evidence was irrelevant and immaterial; (2) it was not given in response to the questions propounded by the plaintiff; (3) it purports to be an ex parte proceeding at which the plaintiff was not present; and (4) it was not taken in accordance with the statute." The trial court sustained the objection and excluded the evidence.
Article 2296 provides as follows: "The party interrogated may, in answer to the questions propounded, state any matter connected with the cause and pertinent to the issue to be tried," etc. It has been held by this court uniformly that the party thus interrogated is entitled to consult with his counsel before he is called upon to answer the interrogatories, if he so desires. If, upon consultation with his attorney, Sparks had, without the presence of the attorney, before the officer taking the deposition, stated the same matter that was stated in his answers, it would have been in accordance with the provisions of the statute. If the plaintiff had moved to quash the deposition because of the presence of the attorney, it would present a different question; but it is unnecessary for us to discuss any phase of the matter which would arise on motion to quash. Testing the objection by the grounds expressed, we think that the evidence was relevant and material. It pertained to matter which was relevant to the issue to be tried, and explained in some measure the testimony already given. It is not necessary that the evidence should be responsive to the interrogatories propounded by the plaintiff, but only that it should be of such matter as pertained to the issue to be tried. The whole proceeding might be termed ex parte. Sparks had no notice of the filing of the interrogatories to him and the plaintiff was not entitled to notice that he would, under the statute, state matters relevant to the issue. The trial court erred in sustaining the objection and excluding the evidence.
The second assignment of error presented in this application complains of the ruling of the trial court in excluding the proposed evidence of J.W. Taylor as to what his intention was at the time he deposited $4,000 of the money obtained by the mortgage in Ohio, in a bank at Toledo, to the credit of his agent at El Paso, Leigh Clark, with instructions to pay it on the contract which Taylor had with Crosby for the purchase of the thirty sections of land. Taylor proposed to state in evidence that it was his intention, after he returned to El Paso, to restore the $4,000 to that fund out of the money that he expected to derive from the negotiation of a $10,000 note in the Lowden National Bank. The plaintiff's counsel objected to the testimony on the ground that it was not competent for Taylor to testify to his intention with regard to the matter. The objection made perhaps does not present the real ground for excluding it, for, if the intention was material to the issue, then undoubtedly he might have stated what his intention was; but, under the facts of the case, if it be true that Taylor agreed with his wife to apply the money in paying for the land for which he had already contracted and that she should have an interest on the entire purchase, then his intention to restore the fund after he arrived in El Paso could not *424 be of any importance in determining the issue. Indeed, if the theory of Taylor that the fund was community property of himself and his wife be true, we see no reason why he should have restored the money to that fund. The court did not err in excluding the testimony.
The principal point in the defense made by Taylor is that the money raised in Ohio upon a note signed by himself and wife was their community property; therefore the payment of that money on the land did not create a trust in her favor against him. The parties have proved the law of the State of Ohio on the subject of the power of a married woman and her husband to contract with each other, and the plaintiff claims that the contract should be controlled by the law of that state. We do not find it necessary to decide whether the contract should be interpreted by laws of Ohio or Texas, for if the transaction is valid by the laws of Texas, it is unnecessary to resort to the laws of our sister state to determine the validity of the agreement.
Upon a careful examination of the evidence and authorites cited by counsel as well as those we have been able to find, we conclude that if the transaction, claimed by Mrs. Taylor to have occurred between herself and husband, had been consummated in Texas, the money derived from the mortgage on Mrs. Taylor's real estate in Ohio would be her separate property. It follows necessarily that the agreement claimed to have been made by Taylor to invest that money so derived from the land of his wife in a contract already existing for the purchase of thirty sections of land, would create in him an express trust in favor of the wife; and he having used the money in acquiring title to the land, Mrs. Taylor was the equitable owner of it in the proportion that the money she furnished bears to the whole price. Parker v. Fogarty, 23 S.W. Rep., 700; Ullman v. Jasper,
In McBride v. Banguss, above cited, Banguss purchased of Blades the tract of land in controversy in that suit and took a bond for title in his own name, the intention being to buy the land for Mrs. Banguss. The cash payment was made with the separate funds of the wife, and it was agreed that she should pay the balance of the purchase money out of her separate estate. In that case Judge Stayton said: "The uncontroverted evidence, however, shows that Banguss never had any real interest in the land, for it was purchased for his wife with the intention that it should be paid for with her separate means, and all the money paid on it prior to the purchase by the plaintiffs is shown to have been of her separate estate. As against her, the plaintiffs took nothing by their purchase, even if they had no notice of her rights at the time of their purchase, for it is not shown that they paid value." (Citing McKamey v. Thorp,
In the case of Ullmann v. Jasper, above cited, the husband contracted to buy two lots Nos. 61 and 62 (name of the town not given in report of the case), paying part cash out of his wife's separate funds and giving his note for deferred payment. For convenience the cash payment was applied to one lot only and the deferred payments were made a charge upon the other; the husband gave his note for the purchase money remaining unpaid. In a contest between the creditors of the husband and the vendee of the wife, it was held that lot 62 was the separate property of the wife.
In Parker v. Fogarty, above cited, the subject was carefully and ably discussed, the authorities reviewed by Chief Justice Lightfoot, of the Court of Civil Appeals of the Fifth Supreme Judicial District. In that case the evidence showed that Amanda J. Fogarty bought a tract of land which was deeded to her, she paying $1,000 of her separate funds on the purchase, and, with her husband, executed two promissory notes for the unpaid purchase money with the understanding that she would pay the notes out of her separate funds. She sold the land, and a creditor of John Fogarty having levied upon and sold it, the purchaser at that sale sued the vendee of Mrs. Fogarty for it, claiming that the land was community property of Fogarty and his wife; but the Court of Civil Appeals held that it was the separate property of Mrs. Fogarty.
Mrs. Schuster bought a tract of land paying $100 cash, her separate funds, and she and her husband executed two joint notes for $100 each. *426 Mrs. Schuster borrowed money and paid the two notes, and then repaid the borrowed money with money belonging to her separate estate. This court held in Schuster v. Jewelry Company, above cited, that the land was the separate property of the wife.
The force of the contention of Taylor and Sparks is that the fact that Taylor signed the note and became personally bound, stamps the money borrowed with the community character; but it is evident that this contention is not sustained by the decisions of this court, for in every case cited above the husband signed notes for deferred payments, and the court held in each case that the fact of agreement that the notes should be paid by the separate funds of the wife fixed upon the land purchased the character of separate property, the controlling facts being the intention of the parties and the investment of the wife's separate funds. Upon a better and broader foundation we rest our conclusion that the fact of intention of the parties that the debt should be paid with Mrs. Taylor's separate funds, and the securing of the note on her land, impressed upon the money borrowed upon the mortgage the character of the security, the separate estate of the wife.
Taylor and Sparks rely upon the cases of Heidenheimer v. McKeen,
The judgments of the district court and the Court of Civil Appeals are reversed, and this cause is remanded to the district court to be tried under the following instructions:
Meador Brothers are entitled to protection as innocent purchasers of the land to the extent that they paid the purchase money before receiving notice of the equity of Mrs. Taylor; but for so much of the purchase money as was paid after they received notice of her right, they must account to Mrs. Taylor in such manner as shall be adjudged by the court in the final settlement of the equities of the parties. Tillman v. Heller,
In order for Mrs. Taylor to recover against Sparks, she must establish her right in the land as against Taylor; also that Sparks conspired with *428 Taylor to defraud her out of her interest in the land, and that in order to accomplish that fraudulent purpose, he received the deed from Taylor to himself, and made the deed to Meador Brothers.
If Mrs. Taylor shall establish her equity in the thirty sections of land as she claims, and if Taylor has sold, as appears to be undisputed, all of the land but the seven sections in controversy, then Mrs. Taylor is entitled to be reimbursed by Taylor for her interest in the thirty sections; but could in no event recover of Sparks more than the value of the seven sections conveyed to him.
Reversed and remanded.