Opinion
No. 3973.
May 7, 1931.
Appeal from District Court, Smith County; Gordon Simpson, Judge.
Suit by Cora Reeves and husband against Curby Reeves, Lura Belle Reeves, and others. From the judgment, Lura Belle Reeves, in her own behalf and as next friend of her infant child, Thomas W. Reeves, appeals.
Affirmed in part, reversed in part, and remanded, with instructions.
H. E. Reeves was a widower with two children, a girl named Emma and a boy named Willie, when he married appellee Cora Reeves about 1905. He then owned, as a part of the community estate between him and his first wife, deceased, an undivided one-half of seventy-two acres of land in Smith county, and his said two children, as heirs of their mother, owned the other undivided one-half thereof. The entire seventy-two acres was occupied and used by said H. E. Reeves and his second wife, said appellee Cora Reeves, as their homestead until about 1915, when he died, still owning said undivided interest in the land, and leaving surviving him his said second wife, a son by her, named Curby, and the two children of his first marriage. After the death of said H. E. Reeves, his widow, said appellee Cora Reeves, occupied and used the entire seventy-two acres as her homestead until she married appellee M. V. Reeves, and ever thereafter they together so occupied and used same. By a deed dated January 3, 1920, Emma Reeves conveyed the undivided interest, thirty acres, she owned in the seventy-two acres as an heir of her mother and father to said appellee Cora Reeves, who, joined by her husband, M. V. Reeves, by a deed dated October 24, 1924, conveyed said undivided interest to her son, Curby Reeves. By a deed dated September 18, 1928, Curby Reeves conveyed the undivided interest he then owned in the seventy-two acres to his mother, said appellee Cora Reeves. By a deed dated March 6, 1929, said appellee Cora Reeves, joined by her husband, M. V. Reeves, conveyed her undivided interest in the seventy-two acres to said Curby Reeves, and later, by a deed dated February 17, 1930, said Cora Reeves and M. V. Reeves conveyed the seventy-two acres to said Curby Reeves. This suit, commenced May 26, 1930, was by said appellee Cora Reeves, joined by said appellee M. V. Reeves, her husband, as plaintiffs, against said Curby Reeves, Lura Belle Reeves, divorced wife of said Curby Reeves, Willie Reeves, Mrs. Emma Ford, formerly Emma Reeves, and her husband, John F. Ford, and Frieda Stegall and her husband, W. S. Stegall, as defendants. It was to cancel the deeds hereinbefore referred to "in so far (quoting) as they effect her (said Cora Reeves') homestead rights * * * in said land." The answer of Lura Belle Reeves to the suit consisted of a general demurrer questioning the sufficiency of Cora and M. V. Reeves' petition, a general denial, a plea of not guilty, a special plea claiming title in herself to an undivided 21/72 of the seventy-two acres, and allegations constituting, she averred, a "cross-action and counterclaim" by her, as next friend of an infant child born to her of her marriage with said Curby Reeves, against said Curby Reeves to have a trustee or receiver appointed to take charge of and handle the interest of said Curby Reeves in said seventy-two acres of land and devote the rents and revenues arising therefrom to the "support, maintenance and education" of said child. In the answer he filed Curby Reeves adopted the pleadings of Cora Reeves as his own, and prayed that she be granted the relief she sought; by exceptions questioned the sufficiency of the allegations in the answer of his divorced wife, Lura Belle Reeves, to show she was entitled to relief she prayed for; denied the truth of such allegations except those as to his marriage to her and the birth of a child of the marriage; and set up as existing things not shown to exist by any evidence adduced, and which therefore need not be further mentioned here. The answers of the Stegalls consisted of a general demurrer, a general denial, and a plea of not guilty; and the answer of the Fords and Willie Reeves consisted of a general demurrer, a plea of not guilty, and a plea setting up title in said Willie Reeves to an undivided interest of thirty acres in the tract of seventy-two acres, and praying that the seventy-two acres be so partitioned as to segregate and set apart thirty acres thereof to said Willie Reeves. Having tried the case without a jury, the court found, among other things, that the seventy-two acres belonged to the community estate between H. E. Reeves, deceased, and his first wife; that when she died their said two children Emma and Willie took title, share and share alike, to her undivided one-half of the seventy-two acres, and, when he died, his said two children Emma and Willie and his child Curby by his marriage to appellee Cora Reeves took title, share and share alike, to his undivided one-half interest, charged with a life estate in one-third thereof which passed to said Cora Reeves, his widow, and also charged with a right in said Cora Reeves to occupy and use same as her homestead; that, when Cora Reeves and M. V. Reeves made the deeds to Curby Reeves they did not intend thereby to convey their homestead right in the land to him; that said deeds were without a consideration and that said Cora Reeves and M. V. Reeves were induced to execute same by representations made to them that their homestead rights would not be affected thereby and that it was necessary that they should execute the deeds to enable said Curby Reeves to lease the land for oil prospecting purposes; that, if the deeds were not void for the reasons stated, then they operated no further than to pass the title to the land to said Curby Reeves to hold in trust for them, said Cora and M. V. Reeves. The court found further that Curby Reeves married Lura Belle Reeves in 1926, and that at her suit a decree divorcing them and awarding her the custody of a child, to wit, Thomas W. Reeves, born to their marriage was rendered February 16, 1929. The court concluded, on the findings specified and others he made, that neither Curby Reeves nor Lura Bell Reeves nor the Stegalls owned an interest in the land, but that forty-two acres thereof, undivided, was owned by Cora Reeves and that the remaining thirty acres thereof was owned by Willie Reeves, and rendered judgment accordingly; that is, the court rendered judgment denying Curby Reeves, Lura Belle Reeves, and the Stegalls relief of any kind, and in favor of Cora Reeves for forty-two acres, undivided, of the seventy-two acres, and canceling deeds she and M. V. Beeves had made conveying same to Curby Reeves, and in favor of Willie Reeves for the remaining thirty acres, undivided, of the seventy-two acres, and appointing commissioners to make a partition accordingly. The appeal is prosecuted by Lura Bell Reeves alone, on her own behalf and as next friend of her infant child, said Thomas W. Reeves.
Hyer Christian, of Fort Worth and Tomas G. Pollard, of Tyler, for appellant.
D. R. Pendleton, of Tyler, for appellees.
At the date of the deed of March 26, 1929, from Cora Reeves and her husband, M. V. Reeves, to Curby Reeves, referred to in the statement above, Cora Reeves owned forty-two acres, undivided, of the seventy-two acre tract. Hence, if that deed should be given effect or if it should not be given effect, and the deed of February 17, 1930, from said Cora and M. V. Reeves to said Curby Reeves, also referred to in said statement, should be given effect, the title to said forty-two acres, undivided, was not in Cora Reeves as determined by the judgment, but was in said Curby Reeves; and Lura Belle Reeves, as next friend of her infant son, Thomas W. Reeves, has a right to complain as she does of the judgment, because of the failure of the court in rendering same to appoint a trustee or receiver to take charge of the forty-two acres and devote the rents and revenues, or so much thereof as may be necessary, to the support and education of said Thomas W. Reeves.
The theory upon which the court below held that neither of said deeds was effective was that it appeared each of them was without a consideration to support it, and was "not made (quoting from the court's findings) with intention of passing title to Curby Reeves but for the purpose of enabling him to lease the land for oil and gas mining purposes with more facility and the grantors were induced to execute the deeds by representations that same would not divest Mrs. Cora Reeves of her homestead."
It appears in the record sent to this court that the only evidence of representations made to induce Cora Reeves and her husband to execute the deeds specified was the testimony of said Cora Reeves as a witness as follows: "I was persuaded to make the other conveyance (that is, the deed dated February 17, 1930), by Marvin Love. I signed a paper thinking to give him (probably meaning Curby Reeves) a chance to lease the land. He said it would cause me to get something myself." Who Marvin Love was and what interest he had, if any, in the matter, did not appear in the testimony. Obviously, we think, the testimony of Cora Reeves just set out, if competent as evidence, did not warrant a finding that the two deeds referred to, or either of them, was ineffective as conveyances of the land. And as obviously, we think, the further testimonies of said Cora Reeves that, quoting, "in making those deeds I didn't know that I was disposing of my homestead interest in the matter, I didn't do it with the intention of disposing of my homestead," did not warrant such a finding. In the absence, as was the case, of pleading and proof showing either fraud, accident, or mistake to have entered into the transaction, the fact that Cora Reeves and M. V. Reeves executed and delivered the deeds was conclusive of the fact that they intended the instruments to operate as conveyances of their title in the land, including their homestead rights.
Nor was the fact, as found by the court, that the deeds were without a consideration a reason for holding them to be ineffective as conveyances. The consideration recited in the deed of March 6, 1929, was $150 cash paid by Curby Reeves. The consideration recited in the deed of February 17, 1930, was $500 paid in cash "and (quoting) the love and affection we have and bear for our son Curby Reeves." Cora Reeves, as a witness, testified that "the $150 consideration (quoting) recited in that first deed from my husband and me to Curby Reeves was never paid. * * * I did not receive any consideration for either one of those deeds," and M. V. Reeves, as a witness, testified that neither he nor his wife, said Cora Reeves, "received any consideration for those conveyances." But, as stated above, it appeared from the recitals in the deed of February 17, 1930, that the consideration thereof was love and affection Cora Reeves and M. V. Reeves had for Curby Reeves as their son as well as the $500 recited to have been paid to them. It is held that love and affection are a sufficient consideration to support a deed from parents to their child. Bishop v. Williams (Tex.Civ.App.) 223 S.W. 512; Couch v. Schwalbe, 51 Tex. Civ. App. 94, 111 S.W. 1046. Hence the conclusion of the court below that the deed of February 17, 1930, was without a consideration to support it was not warranted.
It appearing, as we think it did, that the forty-two acres, undivided, belonged to Curby Reeves, the court below should, it seems from the authorities, have appointed a receiver or trustee to take charge of same and apply the rents and revenues or such part thereof as was necessary, to the support and education of said Thomas W. Reeves, the infant child of the marriage between said Curby Reeves and Lura Belle Reeves. Hooten v. Hooten (Tex.Civ.App.) 15 S.W.2d 141, 143. In the case cited the court said:
"It is now the settled law of this state that the primary duty of supporting minor children rests upon the father, both before and after the divorce of the parents. Gulley v. Gulley, 111 Tex. 233, 231 S.W. 97, 15 A.L.R. 564, and cases there cited. It has also been definitely decided that the district court has authority, both in a divorce proceeding and after the decree of divorce has been granted, to make proper provision for the support of the minor children from the property of the father. Hedtke v. Hedtke, 112 Tex. 404, 248 S.W. 21; Hughes v. Hughes (Tex.Civ.App.) 259 S.W. 180; Bemus v. Bemus, 63 Tex. Civ. App. 148, 133 S.W. 503. * * * In the exercise of that power, the court * * * may fix a reasonable allowance to be paid periodically, and make the payment of such allowance a charge against the rents and revenues of property belonging to the father. Gully v. Gully (Tex.Civ.App.) 173 S.W. 1178; Sneed v. Sneed (Tex.Civ.App.) 296 S.W. 643, and cases cited. To accomplish that end the court may designate specific property and place it in the hands of a trustee to be used for the support and maintenance of the children during their minority. Fitts v. Fitts, 14 Tex. 443; Trimble v. Trimble, 15 Tex. 18; Simons v. Simons, 23 Tex. 344; Rice v. Rice, 21 Tex. 58; Bemus v. Bemus, and Hedtke v. Hedtke, supra."
The judgment will not be disturbed so far as it denied the Stegalls and Lura Belle Reeves in her individual capacity a recovery of anything. It will be affirmed so far as it was in favor of Willie Reeves and awarded a partition of the seventy-two acres at the prayer of his guardian Emma Ford. It will be reversed so far as it was in favor of Cora Reeves and her husband, M. V. Reeves, and the cause will be remanded to the court below for the partition awarded, with instructions to appoint a trustee to take charge of the part allotted to Curby Reeves in such partition and devote the rents and revenues, or the part thereof necessary, to the support, maintenance, and education of the infant Thomas W. Reeves during his minority.