Opinion
No. 3610.
March 14, 1929. Rehearing Denied March 28, 1929.
Appeal from District Court, Lamar County; Newman Phillips, Judge.
Suit by F. A. Barnes and others against Nellie V. Carter and others. Judgment for plaintiffs, and defendants appeal. Affirmed.
The appellees brought the suit to establish a trust in their favor upon a lot in Paris, Tex., and to have the title deed in the name of another reformed in accordance with their interest. The appellees further prayed for partition of the lot by sale thereof as incapable of division. The defendants made due answer. The appellants, Carter and wife, besides general denial, pleaded four and ten years' statutes of limitation and that the consideration for the lot was the exchange of another lot, which was acquired with the separate funds of Eliza Anderson, and that appellees had no interest therein.
The undisputed facts are here shown: Archie and Eliza Anderson, both former slaves, were living together as husband and wife in and prior to August, 1870. They had two children, born before 1870, Belle and Fannie. Belle married, and at the time of her death she left a daughter, Eliza, now Eliza Freeman. Fannie married J. F. Barnes. Fannie Barnes and her husband left Paris in December, 1892, and have never lived there since that time. Eliza Freeman and her husband live in Garland county, Ark. By a deed of date April 11, 1870, J. F. Craddock conveyed lot 1 in block 21 in Paris to "Eliza Anderson and Mary Rice." The consideration recited is "$250 in coin to me in hand paid, the receipt of which is hereby acknowledged." The deed was duly recorded. Mary Rice paid onehalf of the full amount of the consideration. A log house was situated upon the lot, and Eliza Anderson and her husband and the children occupied the house before the date of the deed, and afterwards, as a home. Mary Rice lived in the house with Eliza Anderson and family. Thereafter, in October, 1872, a partition of the lot by voluntary deeds was made between the parties, each taking a separate portion of the lot described by metes and bounds. The deeds were duly recorded.
It was proven that at some time in 1871 Archie Anderson left Paris. It is substantially shown by the evidence that he fled to Arkansas because of the condition reflected by the evidence arising during the reconstruction days. He has never returned to his wife and family since that date, but has continuously resided elsewhere till his death, which presumptively occurred since 1900. His last abode was Sweet Home, Ark., and upon inquiry he was reputed to have died there. The family have been without intelligence of him since March, 1900. It does not affirmatively appear that Archie Anderson and his wife were divorced. It does appear that Eliza Anderson married George Lowery after 1871. There is evidence going to show that Eliza Anderson married George Lowery believing in good faith that a separation of three years automatically "would divorce her" from Archie Anderson. The appellants Ed Lowery and Nellie V. Carter are their children. George Lowery died in 1908. In December, 1900, Eliza Lowery and Joel Springs passed deeds directly exchanging lots. Joel Springs and wife conveyed a lot on North Main street in Paris to Eliza Anderson, reciting a "consideration of $2,500 to us in hand paid, the consideration being a deed to a lot in Paris, a part of lot 1 in block 21, of the total value of $3,500." Eliza Lowery conveyed to Joel Springs lot 1 in block 21 in Paris, reciting a "consideration of $3,500 as follows: Deed to a lot on North Main street valued at $2,500 and for $1,000 cash." Both deeds were duly recorded. On May 20, 1903, Eliza Lowery executed a deed to her daughter, Nellie V. Lowery (now Nellie V. Carter), conveying the property described in the deed from Joel Springs and wife. The deed recites the following consideration:
"Consideration $1 in hand paid, and the further consideration of the love and affection I bear to Nellie V. Lowery, she being my baby child, and the further consideration that Nellie V. Lowery shall well and truly care for me, feed and clothe me during my natural life, and that I am to occupy and use (it) as my home during my natural life, and that Nellie V. Lowery shall pay all taxes, keep in good repair and not sell nor mortgage (same) so long as I live, and treat me kindly and care for me in sickness and old age, when all the above conditions are complied with, otherwise to become void and (of) no effect, and that Nellie V. Lowery shall make it her home as long as I live."
The court submitted the case to the jury upon the following two issues:
"Q. (1) Was the property conveyed by J. F. Craddock to Eliza Anderson in 1870 bought and paid for during the marriage relation of Eliza Anderson and Archie Anderson? Jury answer: Yes.
"Q. (2) After the execution of the deed from Eliza Lowery (formerly Eliza Anderson) to Nellie V. Lowery, did Nellie V. Lowery (now Nellie V. Carter) substantially comply with the provisions of the deed, which recited that Nellie V. Lowery should well and truly care for, feed and clothe Eliza Lowery during the rest of her natural life and treat her kindly and care for her in sickness and in old age? Jury answer: She did."
There is ample evidence to support the first finding of the jury in the testimony of Mary Rice, who was one of the grantees named in the deed made in 1870 by J. F. Craddock. She testified:
"We agreed to pay $250 for the lot, if I am not mistaken. I paid $125, and she (Eliza Anderson) paid $125. My old man gave me my money, and Eliza worked for hers. When we first bought the lot we just paid three or four dollars at a time. We paid down just what we had, and then on that way until we paid for it. Eliza did washing and ironing and things she could do. She worked for Mr. Cook — she used to belong to them — and they helped her by giving her work to do. I do not remember how long it took us to pay for the house and lot. It took us a good long time, as the white folks were good to us. We could only pay a dollar and a half, sometimes two dollars, and sometimes only fifty cents. It went on without any interest. I said we paid for the property at the rate of a dollar, two dollars and three dollars a week. I know that we did not get a deed to it until we paid for it."
The jury were warranted in believing that the deed to the lot was not actually made until the grantees fully "paid" the consideration "for it." The face of the deed recited a cash payment, and the testimony of Mary Rice goes to support the correctness of the recital. The exact date when the indicated contract of sale was made not definitely appearing, the jury could infer from the evidence that it was several years prior to the date of the execution of the deed. It appears that Eliza and Archie Anderson went into the house in 1868. Mary Rice testified: "After we bought the lot we staid in the house together. I was married while I was living with her, and had one child. They were living in the house about a month before I moved in there."
Eliza may have fully paid the $125 in the time between 1868 and April, 1870, when the deed was executed. If she did so, as the jury were warranted in saying, then the fact was shown of payment of the consideration out of personal earnings of Eliza Anderson during the time she and Archie Anderson were actually living together as husband and wife.
There are circumstances which are uncontradicted going to show that Eliza Anderson at all times recognized an interest in appellees to the lot in suit and the one exchanged therefor, and that she never repudiated such interest or set up adverse claim thereto up to the time of her death on August 7, 1926.
The evidence strongly supports the finding of the jury on issue No. 2, and it is unnecessary to set out the items of evidence in that particular.
In keeping with the verdict of the jury the court entered judgment in favor of the appellees adjudging that they held a resulting trust of a one-half interest in the lot passed in the deed from Eliza Lowery to Nellie V. Carter, and that the deed in her name be so modified and reformed as to show conveyance of an undivided half interest in the lot. It was further adjudged that the lot be sold and the proceeds divided in the proportion of onehalf to appellees and one-half to the appellant Nellie V. Carter.
Beauchamp Lawrence, of Paris, for appellants.
Edgar Wright, of Paris, for appellees.
Appellants present the two points in view as constituting distinct grounds of error in rendering Judgment in favor of appellees, that (1) the evidence establishes that lot 1 in block 21 purchased in 1870, as well as the lot on North Main street exchanged therefor, was the separate property of Eliza Anderson; and (2) the appellees' cause of action was barred by the statute of limitation of 10 years.
It is definitely shown that Archie and Eliza Anderson were living together as husband and wife at the time of and before the deed of April 11, 1870. Such deed taken in the name of the wife during the marriage relation was presumptively community property, the face of the deed not declaring otherwise. In view of the circumstances, the trial court was justified in finding that the husband did not intend the title should vest separately in the wife; and the special verdict of the jury determines that the consideration for the lot was paid from wages and earnings of the wife during the marriage relation and the actual living together as husband and wife. Such finding of the jury may fairly be construed, as the trial court was authorized to interpret it, as relating to the time before Archie Anderson left or was forced to leave Paris in the year 1871. There is evidence to the effect that the deed was not made until the lot was paid for, and it was substantially proven that Archie Anderson did not leave Paris before April 11, 1870, the date of the deed. It is well settled that property acquired by deed after marriage and paid for out of the earnings of either the husband or the wife is community property. The beneficial interests of husband and wife in community property are equal, whether the deed be in the name of the husband or the wife. Patty v. Middleton, 82 Tex. 586, 17 S.W. 909; Burnham v. Oil Co., 108 Tex. 555, 195 S.W. 1139. The spouse in whose name the legal title is conveyed holds as trustee for the other. Mitchell v. Schofield, 106 Tex. 512, 171 S.W. 1121. The property nevertheless continued community property, although Archie Anderson may have left his wife and family after the date of the deed and the payment of the consideration. Its status as community property being fixed by law, the direct exchange of such lot for the lot on North Main street made by the wife in December, 1900, did not make the new acquisition the wife's absolute separate property or the absolute property of another. The husband's interest in the first lot entered in part into the new acquisition. That fact put an equitable title in the husband to the acquisition, as against the wife; and the wife held the same as trustee. No express agreement by the wife to hold the new acquisition in trust for the husband was necessary to entitle the husband to recover his equitable interest. Kahn v. Kahn (Tex.Civ.App.) 56 S.W. 946. The transaction was such that a trust arose by implication of law at the time of the acquisition; and this is true although the exchange of lots was made by the wife without the consent of the husband.
As to the second point as to limitation, the court did not err in holding that the cause of action was not barred by limitation. The circumstances show that there was no adverse claim or repudiation of the trust by Eliza Anderson during her lifetime. Andrews v. Smithwick, 34 Tex. 544. And laches cannot be imputed to appellees. They wanted their mother to use and enjoy the property during her natural life, and so expressed themselves to her. The mother lived on the property as her home, in exclusive use and possession, until her death in 1926. She often declared the interests of appellees in onehalf of the property. The suit was filed shortly after her death. The appellees were entitled to enforce the trust upon the lot at her death, and would not be barred of that right, because the appellants, members of the family, had full notice thereof. The appellants were not in possession of the land under the deed, and the deed to Nellie V. Carter was upon certain conditions requiring no reentry by Eliza Anderson. The grantor in such deed was to occupy and use the property as a home during her "natural life." The deed was to be "void and of no effect," upon failure of Nellie V. Carter to perform the "conditions" set out. It is well settled that the appellees were not bound to resort to recovery of their father's interest in lot 1 in block 21. The grantee Joel Springs acquired by his deed both the legal and equitable title to such lot, as an innocent purchaser. Mitchell v. Schofield, 106 Tex. 512, 171 S.W. 1121. It became permissible for appellees to claim their equitable title in the lot on North Main street because of the wrongful conversion of their father's interest in lot 1 in block 21. Limitation began to run against such equitable claim, in the circumstances, only after the death of Eliza Anderson.
Fannie Barnes gave evidence, as conducive to presumed death of her father, Archie Anderson, that upon inquiry as to her father through letter to the minister of the Methodist Church at Sweet Home, Ark., she was informed by such minister that her father was dead. Her father's last fixed abode was Sweet Home, Ark. The appellants objected to the evidence, upon the ground "that the same was hearsay." The evidence was not admissible to prove the specific fact of death, which must be proved by the sworn evidence of one who knew the fact. The evidence, though, was admissible as a circumstance to be considered along with the other circumstances upon which to found the presumption of death. Such circumstances are not objectionable as "hearsay evidence." Primm v. Stewart, 7 Tex. 178; 1 Greenleaf on Evidence, § 41; Abbott's Trial Evidence (2d Ed.) p. 93; 1 Jones Com. on Ev. § 61. It was upon the rule of presumed death of seven years' absense without intelligence that the appellees relied. Fannie Barnes testified:
"My father left (Paris) when I was a small child. It is correct that he just disappeared, and we did not know what became of him, and I never saw him any more. I do know by general reputation that he left the state of Texas and went to Sweet Home, Arkansas. * * * When I heard he was dead I wrote her (witness' mother) about it. I was not here in Paris at the time. I was down near Houston. I wrote her about his death when I heard it about March (1900). * * * I was not in Sweet Home when he died; but I know he is dead, because I wrote to the minister of our church. I did that in 1900. I decided I would go and see him (her father). That is how I happened to write that letter. I never had been to see him, but he used to write to Mamma, and we knew he was in Sweet Home, Arkansas. When I decided to go and see him I found out he was dead. That is all I know about it, what somebody told me. When I testify he died in March, 1900, I testify to what some one wrote me; that is all I know about it."
The fact that "he used to write to Mamma" from "Sweet Home, Arkansas," would go to show that the whereabouts of Archie Anderson was known, and that such place was his fixed abode. It does not appear when he last wrote to his wife, but it does appear that information came of his death at Sweet Home from a person who would naturally have heard of it. After a long interval has passed he has not written to his wife or family or been heard of by any of the family. There is no circumstance tending to show that he has left his former residence of Sweet Home. Archie Anderson was a barber by trade; and Sweet Home, a small town, appeared as his fixed abode for some period of time. Upon inquiry made of the minister, who resided in Sweet Home, he stated to Fannie Barnes, the daughter, that Archie Anderson was dead. This inquiry, coupled with the fact that no more letters were written to the wife, and the long interval that has passed without any intelligence from him, would authorize a presumption of his death. The exact date of death may not be indulged, but the fact that he is dead may be indulged. The trial court was authorized to so find.
Appellants made objections to certain evidence, and have assigned error in respect thereto. The appellees' objection to consideration of the bills of exception must be sustained, since such bills of exception do not show the ground of objection or exclusion of the evidence. Drane v. Humble Oil Refining Co. (Tex.Civ.App.) 4 S.W.2d 241.
We do not think the other assignments afford grounds for a reversal.
The Judgment is affirmed.