Markum v. Markum

WILLSON, C. J. (after stating the facts as above). The recital in the deed (dated February 20, 1899, and duly filed for record March 9, 1899) from the Arons, that the conveyance of the Harwood street property to appellant was “for her separate use and benefit” overcame the presumption which, without it, would be indulged that the title to the property passed to the community estate between appellant and appel-lee, and established, prima facie, that that property instead became a part of appellant’s separate estate. McCutehen v. Purinton, 84 Tex. 603, 19 S. W. 710; Kahn v. Kahn, 94 Tex. 114, 58 S. W. 825. Whether appellee discharged the burden resting upon him to overcome the prima facie case so made in appellant’s favor is a question on this appeal. Appellee alleged that the property was paid for with funds belonging to said community estate, and that the recital in question was (quoted from his answer) “the result of fraud and deceit practiced by the plaintiff upon * * * this defendant, and that, but for such fraud and deceit on the part of the plaintiff, sáid deed would not have been drawn so as to vest the title in the plaintiff for her sole and separate estate, and so as to deprive this defendant of his community interest therein.” And he alleged, further, that he “had no kno.wledge of the recitals in said deed making the said lot the separate property of plaintiff,” and “in good faith believed that the said lot was community property and, so believing, paid the entire consideration for said lot out of community funds.” The specific “fraud and deceit” charged against appellant consisted, it seems, of the fact, as alleged, • that appellant, without ap-pellee’s knowledge or consent, induced one Bolanz to have one Murphy (who wrote the deed) to include the recital in question in it by “falsely and fraudulently” representing that he (appellee) had agreed the deed should be so drawn. On special issues submitted to them, the jury found that the property was paid for with community funds, as charged by appellee, and that appellant falsely and fraudulently made the representation specified, as was further charged by him. Those findings, when considered alone, we think warranted the judgment rendered in appellee’s favor, so far as it was that the property in controversy belonged to the community estate between him and appellant. Kearse v. Kearse (Tex. Civ. App.) 262 S. W. 561; Strickland v. Baugh (Tex. Civ. App.) 169 S. W. 181. In the Kearse Case, where the deed in question contained a recital like the one here, the court said: “To permit a third party, acting either alone or at the instance of one of the spouses, by the use of apt language, such as is contained in the conveyance under consideration, to change the nature of property from community to that of the separate property of one of the spouses, would sanction the commission of a fraud. To accomplish such a metamorphosis, the spouse whose interest will be affected thereby must assent in some way known to the law.” As we understand appellant, she does not’ contend to the contrary. Her contention is, it seems, that the findings were not warranted by the testimony. But we think they were. While she testified as a witness that money belonging to her separate estate was used to pay for the property, and that appellee was present and acquiesced in instructions she gave Bolanz to have the deed written as it was written by Murphy, appellee as a witness testified to the contrary — that the entire purchase price of the property was paid out of community funds of the marriage between him and appellant, and that he knew nothing about the proposition to have the deed so written, or that it was so written, until the trial was had resulting in the judgment grafting him and appellant a divorce from each other, It follows we think the judgment was not erroneous so far as it was in appellee’s favor for an undivided one-half interest in the Harwood street property, unless appellant’s contention that his right to sue therefor was barred by the statute of *298 limitations should have been sustained. Ap-pellee's cross-action, according to his amended answer, was to recover an undivided one-half interest in the property, on the theory that it belonged to the community estate of the marriage between him and appellant. As against such a recovery by appellee, appellant set up (it is assumed, for there is doubt as to the sufficiency of her pleadings to do so) the statute of limitations applicable to suits for the recovery of land. Articles 5672, 5675, Vernon’s Statutes. It seems to be settled that she could not' invoke that statute to show that title to the property vested in her separate estate during the time she and appellee were husband and wife. Cervantes v. Cervantes (Tex. Civ. App.) 76 S. W. 790; Simkins Title by Limitation 188, and authorities there cited. On the theory, it seems, that before appellee could be awarded a recovery of an interest in the property as prayed for it was necessary for him to have the deed from the Arons so reformed as to eliminate therefrom the recital that the property thereby conveyed was to be a part of appellant’s separate estate, appellant set up the statute of limitations of 4 years (article 5690, Vernon’s Statutes) as a bar to the action. It was expressly held, on the former appeal of the case (210 S. W. 835), that (quoting) “it was not necessary to set aside the deed or correct the deed before suing for the interest claimed,” and it seems there is abundant authority for the holding. Strickland v. Baugh (Tex. Civ. App.) 169 S. W. 181; Bell County v. Felts (Tex. Civ. App.) 120 S. W. 1065; Nuckols v. Stanger (Tex. Civ. App.) 153 S. W. 932; Craig v. Harless, 33 Tex. Civ. App. 257, 76 S. W. 594; Watson v. Harris, 61 Tex. Civ. App. 263, 130 S. W. 237; Staffprd v. Stafford, 96 Tex. 106, 70 S. W. 75; Plummer v. McLain (Tex. Civ. App.) 192 S. W. 571; Holt v. Love (Tex. Civ. App.) 168 S. W. 1018. .On issues submitted to them, the jury found that after the rendition September 28, 1917, of the judgment divorcing appellant and appellee from each other and determining that all the property in controversy belonged' to the community estate between them, appellant by “force, threats, or violence” prevented appellee “from using and occupying” the Park avenue property “or any part thereof” for residential purposes. They found further that the rental value of an undivided one-half interest in said Park avenue property during the time ap-pellee “was so prevented from using or occupying the same” was $2,475, but also found that the 'amount appellant actually received as rentals on that property during that time was only $1,320, and for ’the time intervening between said September 28, 1917, to the date of the trial was only $1,460. The jury found further that the rental value of the Harwood street property from said September 28, 1917, to the time of the trial was $3,650, but also found that the amount appellant actually received as rentals on that property during that time was only $2,920. The $1,547.97 adjudged to appellee against appellant was the difference between one-half of the aggregate of the sums found by the jury to be the rental value of the Park avenue and Harwood street properties for times specified and one-half of the aggregate of sums the jury found appellant had paid for repairs on the properties, taxes, etc. With reference to this part of the judgment, appellant presents two contentions. One is that she was liable to appellee, if at all, not for one-half of. the aggregate of the rental value of the properties, but only for one-half the aggregate of sums she received as rentals thereon. The other contention is that the statute of limitations of 2 years applied to the recovery sought by appellee against her on account of rents, and, therefore, that the judgment was erroneous so far as- it was based on the rental value of the properties for any time except the 2 years' immediately preceding October 19, 1923, when appellee’s answer containing the cross-action for such rental value was filed. The contentions will be disposed of in the order in which they have been stated. The law seems to be, when one of two tenants in common takes and holds possession of the common property, denying, the right of the other to share in the possession and use thereof, that the one claiming and exercising such exclusive right of possession and use is liable to the other for rental vahje of the property. Osborn v. Osborn, 62 Tex. 495; Autry v. Reasor, 102 Tex. 123, 108 S. W. 1162, 113 S. W. 748; Stephens v. Hewett (Tex. Civ. App.) 77 S. W. 229; Airington v. Airington, 79 Okl. 243, 192 P. 689, 27 A. L. R. 182, and note beginning on page 184. Therefore we cannot say the trial court erred when he determined that appellant was liable to appellee for one-half the rental value of the Harwood street property, for appellant claimed to be the sole owner of that property, and it seems had the exclusive use thereof from October 28, 1917, the date of the judgment granting the parties a divorce. But we think the court erred when he determined that appellant was liable to appellee for one-half the rental value of the Park avenue property. There was no evidence, as we understand the record, showing that appellant questioned appellee’s ownership of an undivided one-half interest in that property, or denied the existence of a right in him to possession and use thereof in common with her. By the law applicable to that state of facts, appellant was not liable to appellee for one-half the rental value of the property, but was liable to him only for one-half the amount she actually received as rentals for the property. Akin v. Jefferson, 65 Tex. 137; Morris v. Morris, 47 *299 Tex. Civ. App. 244, 105 S. W. 242; Eastham v. Sims, 11 Tex. Civ. App. 133, 32 S. W. 359; Airington v. Airington, 79 Okl. 243, 192 P. 689, 27 A. L. R. 182, and note thereto. In making the statement above, we Rave not overlooked tRe testimony of appellee as a witness as to conduct of appellant, wRicR Re said caused Rim to abandon use Re was making of tRe property in order to avoid trouble Re thought Re otherwise might have with appellant. TRe conduct Re attributed to appellant was not inconsistent with a recognition by her of their ownership of the property in common and of his right to share the use of it with her. We do not think the statute of limitations invoked by appellant was applicable to the recovery sought and obtained by appellee on account of rents. The suit was for partition as well as to determine title. The claim of appellee for rents was incidental to the partition sought, and it is held that the statute of limitations does not apply to an action for partition. Hanrick v. Curley, 93 Tex. 458, 54 S. W. 347, 55 S. W. 119, 56 S. W. 330; In re Wood’s Estate, 68 Misc. Rep. 267, 123 N. Y. S. 574. It follows from what has been said that we think the only error in the judgment is one resulting from the action of the court in allowing appellee a recovery against appellant of one-half the amount (to wit, $2,475) of the rental value of the Park avenue property, instead of one-half the amount (to wit, $730) she received as rentals from that property. The effect of the error was to. cause the court to render judgment in appellee’s favor against appellant for $1,-547.97 as stated, when he should have rendered judgment in appellant’s favor against appellee for $197.03. The judgment will be reformed so as to adjudge such a recovery, in appellant’s favor, and, as reformed, it will be affirmed.