Opinion
Writ of error refused, Mar. 5, 1919.
November 9, 1918. Rehearing Denied December 18, 1918.
Appeal from District Court, McLennan County; H. M. Richey, Special Judge.
Action by, R. C. Johnson against Mrs. T. K. Johnson, wherein J. M. Bird and another became plaintiffs. From judgment that plaintiffs take nothing, and for defendant, plaintiffs appeal. Affirmed.
Jas. E. Yeager, of Waco, for appellants.
E. M. Mann, of Mart, for appellee.
On November 23, 1915, R. C. Johnson filed his original petition in trespass to try title against Mrs. T. K. Johnson, a feme sole, in which he sought to recover an undivided one-half interest in a certain lot in the town of Mart. In an amended petition, in addition to the lot referred to, he sought to recover a half interest in certain personal property, and alleged that all the property referred to was community property of his father, T. K. Johnson, deceased, and his stepmother, Mrs. T. K. Johnson, the defendant.
The proof shows that T. K. Johnson was married twice; that in 1898 he and his first wife were divorced, and a few months thereafter he married his second wife, the defendant; in this case. The plaintiff R. C. Johnson was born during the first marriage, and claimed a half interest in the property which was acquired during the second marriage. T. K. Johnson died in June, 1915, and the plaintiff is his only child.
In December, 1915, the defendant filed an answer, consisting of a general denial and plea of not guilty. After the divorce referred to, the plaintiff's mother married J. M. Bird; and on September 18, 1916, the plaintiff executed a general warranty deed, conveying all of his interest in the tract of land involved in the litigation to his mother, Mrs. J. M. Bird; and on May. 9, 1917, he and Mrs. Bird, joined pro forma by her husband, filed an amended petition, setting up the fact that the plaintiff, R. C. Johnson, had conveyed his interest in the land to Mrs. Bird, and alleging that he disclaimed any further title or right thereto, and thereafter Mrs. Bird became the plaintiff, in so far as the land was concerned. That petition also attempted to set up the right in R. C. Johnson to recover on the ground that a certain sum of money had been placed in the hands of his father, T. K. Johnson, as a trust fund for R. C. Johnson's benefit, but neither the pleadings nor the evidence disclosed any fact that would make the defendant, Mrs. T. K. Johnson, liable to R. C. Johnson on account of the fund referred to. There was no proof that any of that fund was used in paying for the land, and nothing was alleged or proved that would show that Mrs. T. K. Johnson was liable for that fund, even if her husband misapplied it.
On May 17, 1917, the defendant filed her third amended answer, alleging that the real estate in question was her separate property, and, if not, that it was her homestead, and not subject to partition. On May 21, 1917, she filed a supplemental answer, denying the allegations in the plaintiffs' amended petition, wherein it was alleged that Mrs. Bird was an innocent purchaser without notice. On May 23, 1917, plaintiffs filed a supplemental petition, containing certain exceptions, denying facts pleaded by the defendant, and pleading laches and limitation against the defendant's cross-action, wherein she sought to have her deed corrected and cloud removed from her title.
There was a jury trial, wherein, in response to special issues submitted by the court, the jury found that the property in question was the separate property of the defendant at the time of the death of her husband, T. K. Johnson. The jury also found that at that time it was the homestead of the defendant and her husband, T. K. Johnson, and also that it was the homestead of the defendant at the time this suit was commenced.
In addition to the verdict, the trial judge made findings which were incorporated in the judgment to the effect that the plaintiff Mrs. Bird was not an innocent purchaser of the lot in controversy; that the same was the separate property of the defendant, and constitutes her homestead; and that her deceased husband, T. K. Johnson, left no community or separate property. And thereupon judgment was rendered to the effect that the plaintiffs take nothing by their suit, and that the defendant, Mrs. T. K. Johnson, recover the lot or real estate in controversy; and from that judgment the plaintiffs have appealed.
Although appellants' brief has not been prepared in accordance with the rules, inasmuch as it does not contain all that is necessary to enable the court to decide some questions sought to be presented, nevertheless we have examined the record, including the statement of facts, and have reached the conclusion that no reversible error appears.
The real estate in question was deeded to the defendant, Mrs. T. K. Johnson; and therefore, although she was at that time a married woman, the legal title to the property was vested in her; and the court ruled correctly when it held that she had the right to introduce testimony tending to show that her husband caused the deed to be made to her, because he intended it as a gift, which would make it her separate property, although the deed did not state upon its face that the title was vested in her as her separate property. Patty v. Middleton, 82 Tex. 586, 17 S.W. 909.
While it is true that the defendant pleaded that the scribner who prepared the deed neglected to use the words "separate estate," it was not necessary to so plead, as testimony of that kind was admissible under the general denial and plea of not guilty. At any rate, under the pleadings the defendant had the right to show that the deed which was made to her was intended for her separate use and benefit, and vested in her the superior right, which proof could be made by showing that the consideration used in paying for the property was her separate estate, or that her husband had the deed made to her, intending thereby to make a gift. By the judgment rendered, the court did not attempt to reform the deed; and therefore it was not necessary that the grantors should have been made parties to the suit. The defendant submitted testimony tending to support the verdict in her favor on all of the issues submitted to the jury; and we are not prepared to say that the jury's finding is so contrary to the testimony as would justify this court in setting the verdict aside.
Some questions have been presented as to rulings upon the admissibility of testimony which we have considered, and they are decided against appellants. Error has also been assigned because of the refusal of certain requested instructions, but we hold that reversible error is not shown in that regard.
If the property is the defendant's homestead, it is not subject to partition, even if it be community property, in which event Mrs. Bird would be the owner of an undivided half interest, subject to the defendant's right to use the property as a homestead. Therefore, if the question of homestead had been the only defense, we might hold that the court erred in not submitting to the jury appellants' requested charge upon the issue of abandonment of the homestead right; but, if it be conceded that the property was not homestead, still, if it was the separate property of the defendant, as found by the jury, the plaintiffs are not entitled to recover; and therefore the judgment should be affirmed.
Hence we conclude that appellants are not entitled to have the case reversed, unless it appears that material error was committed upon both issues, namely, separate property and homestead right; and, as no such error has been shown upon the issue of separate property, our conclusion is that the case should not be reversed.
As to the question of innocent purchaser, we are of the opinion that the testimony was not such as entitled appellants to have that issue submitted to the jury. Mrs. Bird bought the property while it was in litigation. She not only had constructive notice of the fact that the defendant was claiming the property, but the undisputed proof shows that she had actual knowledge of the pendency of the suit, and had been assisting her son in its prosecution. Before she purchased her son's claim to the property, the defendant had filed an answer denying that he had any interest therein. The facts referred to constitute sufficient notice to prevent Mrs. Bird from being a bona fide purchaser in good faith; but, in addition to that, the testimony fails to show that she paid what is deemed in law a valuable consideration.
The testimony did not raise the question of estoppel; and therefore we decide against appellants on that point.
Our conclusion is that the judgment should be affirmed; and it is so ordered.