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which erroneously, granted partition without GUTHERIDGE et al. v. GUTHERIDGE.

evidence of the value of the land.

(Ed. Note.-For other cases, see Appeal and (Court of Civil Appeals of Texas. Amarillo. Error, Cent. Dig. 88 4555–4561; Dec. Dig. § Nov. 8, 1913. On Motion for Re

1172.*] hearing, Dec. 13, 1913.)

9. HUSBAND AND WIFE (8 249*)-COMMUNITY 1. HOMESTEAD ($ 181*)-ABANDONMENT_EVI. PROPERTY-WHAT CONSTITUTES. DENCE.

Property acquired by a husband before his In an action by a woman to set aside her wife secured a divorce is community property, former husband's conveyance of the community even if at the time of the acquisition she was homestead, the court's finding that she did pot living apart from him because obliged to do so abandon her homestead, but merely left her to make her own living. husband temporarily to earn a living for her

[Ed. Note.-For other cases, see Husband and self and her minor child, held supported by the wife, Cent. Dig. 88 887, 889-892; Dec. Dig. evidence.

$ 249.*] [Ed. Note.-For other cases, see Homestead, Cent. Dig. 88 351-353; Dec. Dig. § 181.*]

On Motion for Rehearing.

10. HUSBAND AND WIFE (8 267*)-COMMUNITY 2. HUSBAND AND WIFE ($ 267*)-COMMUNITY

PROPERTY-CONVEYANCE BY HUSBAND. PROPERTY-EFFECT OF CONVEYANCE BY HUS

A conveyance by a husband of the comBAND.

Where a husband conveyed one-half of the munity, property of himself and wife is good community property of himself and wife to be canceled at the suit of the wife except as

as to his interest in the property and should not their infant child, the rights of the parties up: to her share. on the death of the child intestate and without issue, are the same as if no conveyance had wife, Cent. Dig. s 896, 929–938; Dec. Dig.

[Ed. Note.-For other cases, see Husband and been made.

8 267.*] [Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. 88 896, 929-938; Dec. Dig. 11. JUDGMENT (8 252*) - CONFORMITY 8 267.*]

PLEADING-RELIEF.

If defendant prays for relief and shows 3. PARTITION (8 55*)—PETITION.

himself entitled thereto by the evidence, the Under the direct provisions of Rev. Civ. St. court may grant it notwithstanding the plead1911, art. 6097, subd. 3, a petition for statu- ings of the plaintiff do not request it. tory partition is insufficient when not giving

[Ed. Note.-For other cases, see Judgment, an estimate of the value of the premises.

Cent. Dig. $8 441, 442; Dec. Dig. § 252.*] [Ed. Note.--For other cases, see Partition, Cent. Dig. 88 148–159, 182; Dec. Dig. § 55.*) Appeal from District Court, Collingsworth 4. PARTITION (8 34*)_STATUTORY PARTITION- County; D. E. Decker, Judge. EFFECT.

Action by Alice Gutheridge against R. W. Rev. Civ. St. 1911, art. 6097, providing a Gutheridge and others. From a judgment statutory mode of partition, is not exclusive for plaintiff, defendants appeal. Affirmed in and does not deprive the courts of their equi. table power of partition.

part, and in part reversed and remanded. [Ed. Note.-For other cases, see Partition, See, also, 159 S. W. 452. Cent. Dig. 88 88, 90; Dec. Dig. & 34.*]

R. H, Templeton, of Wellington, and Crudg5. PARTITION (8 55*) — PROCEEDINGS – PETI- ington & Works, of Amarillo, for appelTION.

lants. A petition for equitable partition need not

J. L. Lackey, of Wellington, and state the estimated value of the property.

Presler & Thorne, of Memphis, for appellee. [Ed. Note.-For other cases, see Partition, Cent. Dig. 88 148–159, 182; Dec. Dig. § 55.*) HALL, J. Alice Gutheridge, formerly the 6. APPEAL AND ERROR (8 882*)—PERSONS EN- wife of R. W. Gutheridge, of Green county, TITLED TO ALLEGE ERROR.

Okl., instituted this suit against R. W. GuthWhere defendants by their answer sought eridge (her divorced husband), C. B. Boverie, partition of the land in suit, they cannot on appeal attack their own pleadings, as insuffi- and J. M. Poff, residents of Texas, for the cient to warrant partition.

cancellation of certain deeds and title to [Ed. Note.-For other cases, see Appeal and the N. E. 14 of section No. 28, block No. 15, Error, Cent. Dig. 88 3591-3610; Dec. Dig. 8 H. & G. N. Ry. Co. survey in Collingsworth 882.*)

county, Tex. The allegations of the peti7. PARTITION (8 63*) — PROCEEDINGS — Evi- tion, in substance, are: That plaintiff was DENCE-SUFFICIENCY.

In a proceeding for the partition of real formerly the wife of R. W. Gutheridge, and estate, the question of value should govern Lawrence Gutheridge, a son, was born of more than the item of quantity, and judg-that wedlock. That plaintiff and her said ment rendered without any evidence of value husband were separated in August, 1908. cannot be supported. [Ed. Note.-For other cases, see Partition,

That they owned as community property Cent. Dig. 88 183–185; Dec. Dig. $ 63.*] the N. W. 14 of section 32, block 15, and the 8. APPEAL AND ERROR (8 1172*)-DETERMINA

N. E. 44 of section 28, block 15, of the H. & TION-REVERSAL IN PART.

G. N. Ry. Co. surveys in Collingsworth counUnder rule 62a for Courts of Civil Appeals ty, Tex. That on September 21, 1910, her (149 S. W. x), providing that, if it should ap- said husband conveyed the east 1 of the pear that an error committed by the trial court affects only a part of the controversy and that N. E. 44 of said section 28 to their infant the issues are severable, the judgment shall be son, Lawrence, and at the same time conreversed only in part, the appellate court may, veyed the W. 12 of said 14 to Lee Brown. in an action by a woman to set aside her for- That Lee Brown thereafter conveyed said mer husband's deeds to their community property, reverse only that part of the judgment w. 142 to C. B. Boverie, and afterwards C. *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indetes

B. Boverie conveyed the land to J. M. Poff, | the money theretofore paid by him. His and later her said husband conveyed the prayer is as follows: "Wherefore defendant entire N. E. 14 of said section 28 to the prays judgment of the court that plaintiff said Boverie, who in turn again conveyed take nothing by this suit except a partition the same to J. M. Poff. That on the 3d day of his land in Gray county, Tex., and that of January, 1911, appellee obtained a decree all interest in said land be perfected in the of divorce from her husband in the district present owners of the same, that the W. 12 court of Kingfisher county, Okl., and that be perfected in J. M. Poff and the E. 142 said judgment decreed to her the custody of be partitioned between C. B. Boverie and the infant son, Lawrence, and that said son plaintiff, and for all further relief, both soon thereafter died. It is alleged that the special and general, in law and in equity, deeds above mentioned were all made for that he may be entitled to under the law." the purpose of defrauding plaintiff, and that Defendants Boverie and Poff, by special the grantees thereunder took with notice of answer set up that they were innocent purher rights, and prayed that she be decreed chasers without notice, and in addition thereto have said quarter section with damages to substantially the facts plead by R. W. and for an injunction.

Gutheridge. The prayer as contained in Each of the defendants answered separate the answer of Poff is as follows: "Wherely, the substance of R. W. Gutheridge's spe- fore defendant prays that plaintiff take nothcial answer being as follows: That the ing by this suit, and that said W. 12 of said quarter section was the community S. E. 14 of section 28, block 15, in said Colproperty of himself and wife. That in the lingsworth county, Tex., be decreed to him spring of 1908 they abandoned the land and free from all claims of plaintiff; that he never again resided thereon. That they sep-go hence without day with his costs and for arated in 1908 and never again lived to- damages and for rent of said land for the gether as husband and wife, at which sep year 1912, and for such other and further aration appellee abandoned him and moved relief, special and general in law and in to the state of Oklahoma, and has so re-equity, as he may be entitled to.” The praysided in said state continuously, and now er of C. B. Boverie is as follows: "Whereso resides in said state. That in January, fore defendant prays judgment of the court 1911, she obtained a decree of divorce. That that plaintiff take nothing by this suit as during the time plaintiff and defendant liv- to the W. 12 of the N. E. 14 of section 28, ed together they contracted community debts, block 15, and that he have his costs in this which he was unable to pay, and he sold behalf expended; that the E. 12 of the N. the W. 12 of the N. E. 14 of said section E. 14 of section 28, block 15, in said Col28 to pay said indebtedness. That he had lingsworth county, Tex., be partitioned beno other property out of which said debts tween plaintiff and this defendant; that apcould be paid. That in 1909 he removed to praisers be appointed by the court to apGray county, Tex., and acquired a new home praise and divide the said E. 12 equally, stead, which he had occupied since said date according to value, between this defendant and which he was occupying prior to and at and plaintiff; and that each be placed in the time he sold said N. E. 14 of section 28 to possession of his part within 30 days from defendant Brown, and prior to said sale had date of partition; and that, if the court made and filed a written designation of his should hold that deeds from R. W. Gutherhomestead, stating the same to be in Pampa, idge to Lee Brown and Lawrence Gutheridge Gray county, Tex. That he sold the W. 12 were invalid for any cause, the court have of the N. E. 14 while his wife was separated the entire N. E. 14 of section 28, block 15, from him and residing in another state, partitioned according to the respective inwith which to pay community debts, and terests of claimants to same; and that the conveyed the E. 12 of said quarter to his same be duly and legally partitioned; and son, Lawrence, who had since died, and that that all equities involved in the suit and he and plaintiff were the only heirs of the premises be adjusted in this suit; and for said Lawrence. Since the death of his said all other and further orders and relief, both son, he had again conveyed the entire N. E. special and general, in law and in equity, 44 to the said Boverie, and so had parted as each may be entitled to, and in duty with every interest of every kind and char- bound this defendant will ever pray.” acter in said quarter and disclaimed any in The court's findings of fact and concluterest in the land in controversy. That his sions of law are in substance as follows: said home in Pampa was acquired during First. That the land in controversy is the the marriage and was subject to partition. community property of plaintiff and her That the N. E. 14 sec 32, referred to former husband and is their homestead. by appellee, was purchased and vendor's That it has never been abandoned as a homelien notes given therefor, and that by rea-stead, but that plaintiff was forced to leave son of his wife abandoning him he was un the same temporarily in order to secure able to pay therefor, and foreclosure was work for the support of herself and infant had in the district court of Collingsworth son, and that she left with the intention of county, under which he lost said land and returning at any time appellant Gutheridge

would provide her with a living, and so no essary for a party to be an actual bona fide tified him when she went away.

resident, inhabitant of Oklahoma in order to Second. That appellee did not leave ap- institute divorce proceedings in that state, pellant Gutheridge with the intention of but only necessary that they reside in the separation, but only for the purpose of se state for 12 months. curing work, and never knew that he re Based upon said findings of fact, the court garded her leaving as a separation until concluded as a matter of law that plaintiff she was notified by his attorney that he ought to recover the land in controversy was going to sue her for a divorce.

as her part of the community estate of herThird. That he did file suit in the district self and R. W. Gutheridge, and that all deeds court of Collingsworth county, for a divorce made by Gutheridge or the other defendants and division of property, and when the herein, attempting to convey said land, ought court convened dismissed the same at his to be canceled and held for naught, and own cost.

plaintiff quieted in her title thereby. The Fourth. That plaintiff had never abandon-judgment of the trial court is rendered in ed the land as her homestead, and the per- accordance with the findings and conclusions sonal effects which she had were there on outlined above. the land when she left and were thereafter [1] The appellant's brief submits the case carried away by her mother, who lived near, under a multitude of assignments and propofor the purpose of taking care of the same sitions, the majority of which go to the suffiduring her absence.

ciency of the evidence to sustain the court's Fifth. That defendant R. W. Gutheridge findings of fact and conclusions of law. utterly failed to support his family in any We have read the statement of facts and way or manner for several months before think that the evidence is sufficient to sushis wife went away to her work. That she tain all of the court's findings, except perwas compelled to work and pay all the fam- haps the latter part of the eighth, in which ily expenses for several months prior to that the court finds that the property in Gray time.

county, held by R. W. Gutheridge, exceeded Sixth. That none of the deeds made by in value what would be his part of the land R. W. Gutheridge to any of the defendants, in controversy. It is not necessary for us and none of the deeds made by said defend- to set out the facts in detail, or even in subants to each other, purporting to convey or stance; but the following excerpts from the attempting to convey the land, were made in testimony of the plaintiff will serve to show good faith for valuable consideration, but that the court's findings, with the exception that all of said deeds were made with full above noted, are amply sustained: "I did knowledge by said parties of appellee's claim not know that myself and husband had sepand right in the premises and that appellee arated until his attorney wrote me, asking me had possession of said land and was paying if I would file a suit for divorce, over there taxes and interest thereon during that time. at Enid. I had left our home (the land in

Seventh. That at the time of plaintiff and question), temporarily prior to that time and defendant R. W. Gutheridge's separation, had gone to Chillicothe, Tex., where my husthey owned and possessed other property band and I lived for about six months. We which was community property, and which did not acquire any home there. He was he disposed of and gave none of the pro- in the insurance business. I came back up ceeds to plaintiff or their son, and he also to our home in the fall. I think that was owned and held other property in Gray coun- in 1907. He came back in the summer. ty, Tex.

When he returned here in the fall, he went Eighth. That the community property dis- out to my mother's place close to where we posed of by said appellant Gutheridge, and lived in Collingsworth county, just a fence the other community property held by him between us. At the time he left me in in Gray county, Tex., exceeded in value what Chillicothe, he made no provisions for me to would be his part in the land in controversy. live—no money for any groceries. We had That appellee has had to care for and pay been living in a rented house there. He did all the expenses incident to raising their not pay the house rent nor any of the grocery said infant son since and before their separa- bills. I paid it. I did some sewing down tion, and that said child died some time in there. Went from there to Vernon and pickthe year 1912, and that appellee was forced ed cotton for two months. When I left to pay the doctor's bills and all funeral there, I shipped my household goods to expenses incident to the sickness and death Memphis and paid the freight on them and of said child, amounting to something over went back up to my mother's place in this $200. That plaintiff sued defendant Guthe-county. When I arrived there, my husband ridge for divorce in the state of Oklahoma had gone. My father got my things from and was decreed a divorce, together with memphis for me. I remained at my mother's the care and custody of their said child, and about six months—perhaps not so long-and that such decree was entered after the said went away again. I returned there in the R. W. Gutheridge had conveyed all the lands fall and left there the 1st of February, at in this controversy, and that it was not nec-| which time my husband was there He

knew I was going to leave and did not seem [3] Under the twenty-eighth assignment of to care. I told my reason I was going to error, which, is that the court erred in holdleave was because I would have to go and sing and in making an accounting between R. make a living. He refused to work, and IW. Gutheridge and Alice Gutheridge, because had to go to work and make the living. there were no pleadings in the case warI went from there to Shamrock, Tex., where ranting the same nor in the prayer therefor, I took the train. My husband took me to it is urged that there being no allegations of Shamrock to the train. I told him at that value of the community property now in the time when he got something to live on to hands of R. W. Gutheridge, nor of amounts let me know and I would come back any received by him from that alleged to have time he wanted me to; that I was simply been appropriated, and no proof offered going away to make a living. I wrote him as to any of these essential points, the court that I had reached Enid all right, but I never fundamentally erred in undertaking to parheard from him until through his lawyer, of-tition such properties and adjust community fering to send me money to get a divorce rights herein. An inspection of the pleadover there. I never received any letter from ings briefly set out above, together with the my husband, but I replied to his attorney, prayer, shows that the suit as originally instating that I did not care for a divorce, but stituted by plaintiff was not a partition suit if Mr. Gutheridge wanted one to go ahead. brought either under the statute or as an After that I was cited to appear here in a equitable proceeding, but that the defenddivorce proceeding and came back to court. ants, by their pleadings, endeavored to conMy husband did not appear, and the suit vert it into a suit for partition under the was dismissed. I saw him about a week statute. There was a prayer for the apbefore court, but he made no offer for me to pointment of commissioners, etc. Plaintiff. come back and live with him. He just asked seems to have acquiesced in this, but from me to compromise with him on the property. some cause the purpose of going into partiHe wanted to divide the land in halves. He tion of the property under the statute was did not want to give the baby anything at abandoned, since the record fails to show all and wanted me to support it. I have the appointment of commissioners, the issunever received any proceeds from the sale ance of any writ of partition, or any report of the land. I have not lived with my hus- by commissioners. If appellants had perband since February, 1908, when I left him sisted in their original purpose of having a at Shamrock, because I have not had the partition of the property under the statute, opportunity. I have never lived in the house their pleadings were manifestly insufficient on the land in controversy since we went to under article 6097, R. S. 1911, subd. 3, which Chillicothe, but I have had it occupied. I requires that a petition in such proceeding leased the land to my father one year. I shall estimate the value of the premises. believe he made two crops on it, he and my [4, 5] It is held in this state that the giving brother. I have had the use of the land all of the remedy by statute has never been the time since I left here and have the use deemed to take away or in any degree of it now. I have people there tending it, abridge the original inherent powers of the and they have been ordered off a time or two, court in an equitable proceeding for that purbut they still hold it."

pose to partition real estate. The statute Without quoting further from the evi- simply prescribes a procedure which parties dence, we will state that the record abun- may adopt if they see proper, but it is not dantly sustains the court in his finding that obligatory. Our courts exercising the powers the defendants Boverie and Poff were not of courts of chancery may proceed to admininnocent purchasers, and also that the con- ister the relief upon the principles of equity, veyances of the property in question were as fully and completely as if the proceedings made with the fraudulent intent alleged. had been brought and prosecuted under the The questions which we will consider specif- statute. Grassmeyer v. Beeson, 18 Tex. 753, ically are raised by the following proposi- 70 Am. Dec. 309; Ellis v. Rhone, 17 Tex. 131 ; tions:

Ross v. Armstrong, 25 Tex. Supp. 355, 78 Am. [2] “There being no effort on appellee's Dec. 574; Payne v. Benham, 16 Tex. 364. part, either in her pleadings or proof, to void We have investigated the question as fully the deed from R. W. Gutheridge to Law- as the authorities at hand would permit and rence Gutheridge, and said Lawrence Guth-have failed to find any case or any texteridge having died intestate, under ten years writer holding that it was necessary in a bill of age, the court erred fundamentally in in equity to allege the value of the property holding that title to the E. 12 of the N. E. 44, sought to be partitioned. section 28, did not vest in equal halves in his [6] Besides, complaint made in this court parents, and those holding under them.” by appellants is directed to a defect, if held This proposition has no merit. The transfer to be one, in their own pleadings. They of the estate to the minor, and the subse-sought the partition, took the initiative, and, quent death of the minor, left the matter in if the record is insufficient to sustain the the same condition as it was before, so far as court, appellant should not be heard to comthe rights of the parties in this litigation are plain. concerned

[7] A careful perusal of the statement of

facts, however, fails to disclose any evidence sue of the property was not alleged, nor was of value, and according to Parker v. Cockrell the Pampa property described. et al., 31 S. W. 221, the question of value The motion for rehearing is overruled, exshould govern more than the item of quan- cept as hereinbefore stated. tity in making a partition of real estate. Ap pellant's assignment, therefore, to the effect that there is no evidence supporting the court's judgment in partitioning the property FAHEY V. BENEDETTI et al. between R. W. Gutheridge and his wife, must (Court of Civil Appeals of Texas. San Antonio. be sustained.

Nov. 26, 1913. Rehearing Denied [8, 9] Rule 62a for Courts of Civil Appeals

Dec. 20, 1913.) (149 S. W. x) provides that if it should ap- 1. APPEAL AND ERROB (8 743*)-ASSIGNMENT

OF ERROR-REVIEW. pear to this court that the error committed

An assignment of error that the court erred by the trial court affects a part only of the in directing a verdict on the ground that the evmatter in controversy, and the issues are idence was sufficienty conflicting to go to the severable, the judgment shall only be re-jury will not be considered on appeal, where the versed and a new trial ordered as to that the motion for new trial in which the questions

assignment does not refer to the paragraphs of part affected by such error.

were presented to the trial court, and the state. We therefore affirm the judgment of the ment does not contain such reference, and the trial court in canceling the deeds mentioned ed in the assignment, and the assignment is fol

motion contains no reference to the ground urg. in the judgment and divesting C. B. Boverie, lowed by propositions casting no light on the Lee Brown, and J. M. Poff, of any interest in matter and by a statement failing to comply with the said N. E. 44 of section 28, block 15, H. the rules. & G. N. Ry. Co.; but the portion of said Error; Cent. Dig. 88 2999, 3011; Dec. Dig. $

[Ed. Note.--For other cases, see Appeal and judgment which attempts to partition said 743.*) quarter section between R. W. Gutheridge 2. VENDOR AND PUBCHASER (8 315*)-Conand appellee herein is reversed and remanded TRACTS-EVIDENCE. for the want of testimony to support it, with

In an action by a vendor for the price, eviinstructions to the trial court to ascertain and that, out of the payment made by the pur

dence held to show performance by the vendor, the value of all of said property and to parti- chaser to the holder of the deed in escrow, tion the same between R. W. Gutheridge and taxes on the land and incumbrances were to be appellee, Alice Gutheridge, in accordance paid, so that the purchaser would acquire a

good title, authorizing a recovery. with article 4634, R, S. 1911, and in this con

[Ed. Note.-For other cases, see Vendor and nection we hold that the trial court was cor- Purchaser, Cent. Dig. $$ 928-931; Dec. Dig. $ rect in his finding that all of said property 315.*] was community property. Young v. Young, 3. APPEAL AND ERROR (8 742*)-ASSIGNMENTS 23 S. W. 83; Huntsman v. Huntsman, 147 -REVIEW. S. W. 351 ; Franks v. Franks, 138 S. W. 1110. judgment as unsupported by the evidence, will

An assignment of error, which attacks the Affirmed in part, and reversed and re not be considered where no statement is made manded in part.

under the assignment.

[Ed. Note.-For other cases, see Appeal and On Motion for Rehearing.

Error, Cent. Dig. $ 3000; Dec. Dig. $ 742.*] [10] After reviewing the record again, we

4. APPEAL AND ERBOR (8 742*)-ASSIGNMENTS

-REVIEW. have concluded that we were in error in can An assignment that the court erred in overceling the deeds except in so far as they pur- ruling, the special exception of defendant to ported to convey the interest of appellee in plaintiff's failure to allege a contract in writ

ing will not be considered, where no statement is the property. We think they had the effect submitted and the court on appeal does not of conveying whatever right R. W. Guthe- know to what ruling complaint is made. ridge may have had, subject to the right of [Ed. Note.-For other cases, see Appeal and appellee, to a partition in this action. R. W. Error, Cent. Dig. $ 3000; Dec. Dig. $ 742.*] Gutheridge certainly could not transfer the 5. FRAUDS, STATUTE OF ($ 150*)—DEMURBER

GROUNDS. Interest of appellee and to which she may be

Where the petition did not show that a entitled, under the facts developed upon an contract for the sale of real estate was oral, an other trial. To that extent our original opin- exception to the petition for failure to allege a ion is reformed.

contract in writing was properly overruled. [11] Appellants contend that, because the ute of, Cent. Dig. 84 360–362;' Dec. Dig. $ 150.*)

[Ed. Note.-For other cases, see Frauds, Statpleadings of the appellee did not authorize the court to decree a partition, none should 6. SPECIFIC PERFORMANCE ($ 114*)—SALE OF

REAL ESTATE-PERFORMANCE. have been made. If either party prays for A petition, in an action for the failure of a relief and shows himself entitled thereto purchaser of real estate to perform his part of by the evidence, the court may grant it, not the contract, which alleges the execution by the

vendor of a deed to the premises and delivery withstanding the pleadings of the opposite thereof in escrow for delivery on conditions party do not ask it. This record shows that specified to the purchaser, and the delivery to the court, as well as the litigants, treated it the escrow holder by the purchaser of a check

for delivery to the vendor on specified conditions, during the trial as a partition suit. How

and which avers that the vendor removed to othever, as held in our original opinion, the val er premises after a sale of her personalty at a *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

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