Opinion
No. 4036.
June 30, 1931. Rehearing Denied July 4, 1931.
Appeal from District Court, Hunt County; Newman Phillips, Judge.
Action by Mrs. Rosa Taylor and others against Mrs. Mary E. Byrd and another. From the judgment, the named defendant appeals.
Affirmed.
L. N. Byrd and appellant Mary E. Byrd were married September 23, 1891. He died December 22, 1928, leaving a will by which he bequeathed his entire estate to her. She was appointed administratrix of his estate with the will annexed and qualified as such March 20, 1929. By a deed dated August 21, 1896, filed for record December 7, 1896, Jane Wall conveyed a lot 118 by 157 1/3 feet in the city of Greenville to said L. N. Byrd. According to recitals in the deed the consideration for the conveyance was $50 paid by said L. N. Byrd and his two promissory notes — one for $50, due November 1, 1896, and the other for $200 due on or before May 1, 1897. By a deed dated October 22, 1900, filed for record November 9, 1900, George Swinney and his wife conveyed to said L. N. Byrd a lot 117 by 157 1/3 feet adjoining the lot conveyed by Jane Wall to said L. N. Byrd as above stated. According to recitals in the deed the consideration for the conveyance was $225 paid by said L. N. Byrd. The two lots above described are referred to in the record on this appeal as the "Community Center Property." Appellant claimed it was a part of her separate estate, because it was paid for, she asserted, with funds belonging to that estate. By a deed dated December 15, 1927, filed for record February 11, 1929, L. N. Byrd conveyed 54 by 208 feet of lots 6 and 11, block 202, in the city of Greenville to his son Robert N. Byrd. According to recitals in the deed, the consideration for the conveyance was $10 paid by said Robert N. Byrd. At the trial Robert N. Byrd disclaimed any claim of title by virtue of this deed. By a deed dated January 10, 1928, filed for record March 15, 1929, L. N. Byrd undertook to convey to said Mary E. Byrd lots 1 and 8, block 16, lot 7, block 9, and 53 by 208 feet on Washington and Lee streets, all in said city of Greenville. The land last described was the tract L. N. Byrd conveyed to Robert N. Byrd above referred to. According to recitals in the deed the consideration for the conveyance was "Seventy-five Thousand Dollars (quoting) of the separate money of the said Mrs. M. E. Byrd derived partly from the sale of real estate inherited by her from her parents and partly from the rents of her buildings in the city of Greenville, also inherited by her from her parents, and which moneys were turned over to me (said L. N. Byrd) and much of the same used in the purchase of the property hereinafter conveyed." Appellant omitted the property hereinbefore described from the inventory she returned as administratrix, because, she claimed, same belonged to her separate estate and not to the decedent's estate. This action was by appellees Rosa Taylor, Catherine Craven, joined by her husband, R. L. Craven, Mrs. M. C. Arnold, joined by her husband, W. M. Arnold, Manzy Arnold, W. L. Bush, and Walter Bush, individually and as temporary administratrix of the estates of W. H. Bush, deceased, and Nancy Bush, deceased, who sued in their own behalf as creditors of said L. N. Byrd's estate and for the benefit of other creditors of said estate. It was against Bob Byrd and appellant, Mary E. Byrd, individually, as sole devisee under said L. N. Byrd's will and as administratrix with the will annexed of his estate, and was to set aside the deed dated December 15, 1927, from L. N. Byrd to Robert N. Byrd, on the ground that it was without consideration and made for the purpose of placing the land described in it beyond the reach of said L. N. Byrd's creditors; to set aside the deed dated January 10, 1928, from L. N. Byrd to appellant, Mary E. Byrd, on the ground that it was never completed by delivery thereof by L. N. Byrd during his lifetime, but, if it was, then on the ground that it was without consideration and made at a time when L. N. Byrd was insolvent, and for the purpose of placing the property beyond the reach of his creditors; and to compel appellant as administratrix aforesaid to inventory as property belonging to the estate of said L. N. Byrd, deceased, the property described in said deeds of December 15, 1927, and January 10, 1928, and the land described in the deeds from Jane Wall and George Swinney and his wife to L. N. Byrd. At the trial special issues were submitted to the jury, and on their findings judgment was rendered January 20, 1931, (1) canceling the deed dated January 10, 1928, from L. N. Byrd to Mary E. Byrd; (2) determining that a deed dated December 30, 1895, from L. N. Byrd to Mary E. Byrd was never delivered during L. N. Byrd's lifetime and "never became a valid conveyance," and that the land described in it never became a part of Mary E. Byrd's separate estate, but belonged to the community estate between her and her husband, L. N. Byrd; (3) determining that the property known as the "Community Center Property" was a part of the community estate between said L. N. Byrd and said Mary E. Byrd; (4) that Mary E. Byrd had a charge of $1,750 against the George Swinney lot for improvements she placed thereon; (5) directing Mary E. Byrd to inventory all the property mentioned as the property of the estate of L. N. Byrd; (6) and determining that the property described in deed from L. N. Byrd to Bobby Byrd disclaimed by latter belonged to said estate of L. N. Byrd. The appeal was prosecuted by Mary E. Byrd alone.
Neyland Neyland and B. F. Crosby, all of Greenville, and Wm. Hodges, of Texarkana, for appellant.
B. M. McMahan, Clark, Harrell Clark, and L. L. Bowman, Jr., all of Greenville, for appellees.
Of the twenty-five propositions in appellant's brief, the first nine relate to the land constituting what is referred to in the record as the "Community Center Property." As appears in the statement above, that land was conveyed to L. N. Byrd after he and appellant were married in 1891, to wit, in 1896 and 1900. Presumptively, therefore, when the land was so conveyed, it became a part of the community estate between said L. N. Byrd and appellant. Wideman v. Coleman (Tex.Com.App.) 17 S.W.2d 786. To the contrary of that presumption, appellant insisted in the court below, and insists here, that the conveyances to L. N. Byrd were in trust for her, and therefore that the land never became a part of said community estate, but, instead, became a part of her separate estate.
In support of her contention appellant adduced evidence showing or tending to show (1) that her father gave her money which she gave to L. N. Byrd to use in buying the property for her; (2) that afterward said L. N. Byrd repeatedly declared he bought the land with such money, and that it belonged to appellant; and (3) that appellant, claiming to own the property, expended money belonging to her separate estate in improving it. As controverting appellant's contention, appellees relied (1) on the presumption that the property was community arising from the fact that it was conveyed to L. N. Byrd while he and appellant were married; and (2), on certain declarations as to the ownership of the property made by L. N. Byrd during his lifetime, admitted as evidence over objections thereto interposed by appellant.
As to one of the declarations it appears in a bill of exceptions that L. L. Bowman testified that after L. N. Byrd's death he had a conversation with appellant with reference to the "Community Center Property," in which she said something about the property being hers, when her daughter, Mrs. Starke, who was present, spoke up and said: "Papa always said that belonged to him." The objection was to what Mrs. Starke said L. N. Byrd said. The grounds thereof were that what L. N. Byrd said was "irrelevant, immaterial, prejudicial to the right of Mrs. Byrd, and hearsay." Appellees' view is that the declaration was admissible as evidence because it was, they assert, part of the conversation between the witness Bowman and appellant, and because it was, they assert, further, in rebuttal of testimony on appellant's behalf. In support of that view, which is shared by a majority of the members of this court, appellees cite many authorities, among same being the following: Sumner v. Murphy, 2 Hill (S.C.) 488, 27 Am.Dec. 397; Wingo v. Caldwell, 36 S.C. 598, 15 S.E. 382; Joyce v. Hamilton, 111 Ind. 163, 12 N.E. 294; 22 C.J. 290; 16 Cyc. 898; Hutcheson v. Massie (Tex.Civ.App.) 159 S.W. 315; Walker v. Pittman, 18 Tex. Civ. App. 519, 46 S.W. 117; Wells v. Burts, 3 Tex. Civ. App. 430, 22 S.W. 419; Smitheal v. Smith, 10 Tex. Civ. App. 446, 31 S.W. 422; Portis v. Hill, 14 Tex. 69, 65 Am.Dec. 99; Easley v. Ry. Co., 113 Mo. 236, 20 S.W. 1073. The writer thinks the testimony was subject to the objection urged to it, and that it was error to admit it as evidence. As he understands the rule, such declarations are admissible as explanatory of a declarant's possession of land, but are regarded as self-serving and inadmissible as evidence of title in the declarant. Mooring v. McBride, 62 Tex. 309; Maffi v. Stephens (Tex.Civ.App.) 93 S.W. 158; Duren v. Bottoms, 60 Tex. Civ. App. 355, 129 S.W. 376; Cattle Co. v. Cooper, 39 Tex. Civ. App. 99, 87 S.W. 235; Gilbert v. Odum, 69 Tex. 670, 7 S.W. 510; Hays v. Hays, 66 Tex. 606, 1 S.W. 895; McDow v. Rabb, 56 Tex. 154; Warren v. Humphreys (Tex.Civ.App.) 274 S.W. 250; Snow v. Starr, 75 Tex. 411, 12 S.W. 673. The issue in the case was one as to title and not as to possession by L. N. Byrd of the land.
As to the other declaration (there were only two) it appears in a bill of exceptions that appellees offered as evidence a financial statement in writing, dated December 1, 1927, made by L. N. Byrd, furnished to P. A. Norris, for use in negotiating a loan Byrd wished to secure. In the list of properties (aggregating $503,000 in value) was an item described as "Community Center, 4 bricks, 40,000." Appellant objected to the admission of the statement as evidence that the "Community property" belonged to the community estate between her and L. N. Byrd, on the ground (1) that it (the statement) antedated the deed of January 10, 1928, from L. N. Byrd to appellant; (2) that it did not appear that "any credit or extension of credit was made on account" thereof; (3) that it did not appear to have come from the proper custody; (4) it did not appear it was made in appellant's presence, or that she knew anything about it; and (5) it was "irrelevant, immaterial and hearsay." The court sustained the objection except so far as it applied to the item "Community property, 4 bricks, 40,000." He overruled the objection so far as it was to that item, and admitted same as evidence. As we construe it, the declaration was not materially different from the one Bowman testified Mrs. Starke referred to, and what was said about it above applies as well to the declaration in the Norris statement. In conformity to the view of the majority, the assignments predicating error on the action of the court below in admitting the declarations as evidence are overruled.
It is insisted that the findings of the jury, in response to the first and second special issues submitted them, that neither the land described in the deed from Jane Wall to L. N. Byrd nor the land described in the deed from George Swinney and his wife to L. N. Byrd was paid for with money given to appellant by her father, were without support in the evidence. Contrary to appellant's contention with reference to this phase of the case, the deeds to L. N. Byrd prima facie establishing that the land was community, we think the burden was on appellant to prove it was so paid for, and that the jury had a right to conclude that she had failed to discharge the burden. And contrary to appellant's further contention, we think the findings of the jury in response to said first and second special issues were in legal effect, in view of her pleadings, equivalent to a finding that the property belonged to the community estate. According to the allegations in appellant's answer the ground, and only ground upon which she predicated her claim, that the land was not community property, but belonged to her separate estate, was that it was paid for with money belonging to her said estate. Gates v. Pitts (Tex.Civ.App.) 2 S.W.2d 307; Askey v. Power (Tex.Com.App.) 36 S.W.2d 446; Brigman v. Holt (Tex.Civ.App.) 32 S.W.2d 220.
The remainder of the land in controversy was that described in the deed from L. N. Byrd to appellant dated January 10, 1928, referred to in the statement above. It will be noted from recitals therein that that deed purported to have been made by L. N. Byrd to pay indebtedness he claimed he owed appellant in her separate right. The jury found on the special issues submitted to them that L. N. Byrd was insolvent at the time he made the deed, and that appellant was chargeable with knowledge thereof; that L. N. Byrd was not then indebted to appellant "for money from her separate estate theretofore used by him"; and that the deed "was not in payment of what he owed her on account of money used by him from her separate estate." It appearing that appellees were creditors of L. N. Byrd at the time he made the deed in question, the findings of the jury, if warranted by the evidence, established the invalidity of the deed by force of article 3997, R.S. 1925, as follows: "Every gift, conveyance, assignment, transfer or charge made by a debtor, which is not upon consideration deemed valuable in law, shall be void as to prior creditors, unless it appears that such debtor was then possessed of property within this State subject to execution sufficient to pay his existing debts."
Appellant's contention is that the findings that L. N. Byrd was not indebted to appellant on account of money used by him from her separate estate, and that the conveyance was not to pay money he owed her, were without evidence to support them. We have read the evidence in the statement of facts sent to this court and think the jury had a right to draw inferences from it entitling them to make the findings in question. We do not agree with appellant in her contention that the testimony of the witness Bush as to what the books of banks she and L. N. Byrd did business with showed as to their respective accounts with said banks was inadmissible. The testimony, it seems to us, was within an exception to rules of evidence invoked by appellant that, where books are voluminous and involve intricate details so as to make it inconvenient for the court to make the necessary examination, "parol evidence of an expert accountant or other competent person is admissible to prove what said books show." Indemnity Co. v. Shaw (Tex.Civ.App.) 8 S.W.2d 196, 197; Clopton v. Flowers (Tex.Civ.App.) 183 S.W. 68; American Surety Co. v. Bank (Tex.Civ.App.) 14 S.W.2d 88. We conclude that the judgment should not be disturbed so far as it determined that said deed of January 10, 1928, was without a consideration deemed valuable in law, and therefore was void as against appellees.
The conclusion stated is in the face of a contention by appellant that in any event the judgment was wrong so far as it required her to inventory lot 7 in block 9, mentioned in appellees' petition, as a part of L. N. Byrd's estate. The contention is on the theory it appeared that that lot was conveyed to her by L. N. Byrd, December 30, 1895, by a deed of that date subject to none of the objections urged to the deed of January 10, 1928, and therefore that the title to same was in her, even if said deed of January 10, 1928, was inoperative. The theory seems to be without support in the evidence. We have been unable to find in said statement of facts any mention of such a deed as the one referred to conveying lot 7, block 9, from L. N. Byrd to appellant, dated December 30, 1895. There is a deed of that date in said statement, but it is of lot 5, not lot 7, in block 9.
Assignments of error not in effect disposed of by what has been said are overruled, because we think none of them present error requiring a reversal of the judgment.
The judgment is affirmed.