BARROW, Justice.
This suit was filed by appellant, Ada M. Chasteen, to set aside and hold for naught a deed from her former husband, Willard J. Chasteen, to appellee, Bradford F. Miller, on the ground that it was in fact a mortgage on the homestead of appellant and said Willard J. Chasteen. Appellant alleged that she did not join in the conveyance, that the property was at the time her homestead, and that such homestead was in the divorce decree awarded to her, that, therefore, the deed from her husband alone, without her joinder, is invalid under Article 16, § 50, of the Texas Constitution, Vernon’s Ann.St. Appellant seeks to remove cloud from her title to the property by virtue of said deed from her former husband to appellee. The trial was to the court without a jury. A take nothing judgment was rendered against appellant.
Appellant predicates her appeal upon three points: (1) The trial court erred in failing to allow her to show that the deed was a mortgage as security for at-[774]*774to rney’s fees. (2) The court erred in holding that the deed in question was valid, because it was not acknowledged in the manner required by law. (3) The court erred in failing to void the deed, because the undisputed evidence shows that the same was a lien or mortgage in violation of Article 16, § 50, of the Texas Constitution.
Appellant’s first point should be overruled because' the record shows that the only evidence offered by appellant, and excluded by the. court, is an instrument which purports to be a statement of account due from appellant to appellee. The record shows that the document was simply offered by appellant without identification. The evidence was excluded by the court upon the objection that the instrument was not identified and because it was immaterial and irrelevant. The instrument was then introduced for the purpose of appellant’s bill of exception. Appellant offered no evidence to show where the instrument came from or that appellee had anything to do with it. The instrument does not purport to have been signed by appellee. Moreover, the instrument shows on its face that at least parts of it are immaterial. The appellant made no separate tender in evidence of any part thereof that might have been material. The record fails to show anywhere that the trial court failed or refused to permit appellant to show that the deed in question was in fact a mortgage. The court did not err in sustaining the objection and excluding the document offered under the circumstances.
. By appellant’s second point she contends that the deed is void because it was not joined in by her as the wife of Willard J. Chasteen at the time of the conveyance, as required by Art. 1300, Vernon’s Ann.Civ. Stats. While it is true that the deed was executed and acknowledged by Chasteen on July 30, 1956, it was executed at Wichita Falls, Texas, and mailed to San Antonio with the express understanding that it was not to be delivered unless and until the divorce was granted. The undisputed evidence shows that it- was received in San Antonio on July 31, 1956, the same day the divorce was granted, but was actually delivered after the divorce was granted. After the divorce was granted, the following instrument was executed by appellant and appellee:
“This Agreement, by and between Ada M. Chasteen and Bradford F. Miller, her attorney, Witnesseth:
: “Whereas, Bradford F. Miller has rendered to Ada M. Chasteen legal services in connection with her divorce action against her husband, and as a result thereof she has made a property settlement and obtained a decree of divorce from her husband, and has agreed with her said attorney that a reasonable attorney’s fee for the services rendered by him in connection with said divorce action would be substantial; and
“Whereas, she has no funds with which to pay the same in cash, and the said Bradford F. Miller has agreed to accept in payment of his fee for such services the community interest her former husband Willard J. Chasteen did have in and to the former homestead located at 845 Sunshine Drive, San Antonio, Texas; and
“Whereas, the said Willard J. Chasteen has agreed to convey his said community interest to the said Bradford F. Miller in payment of his liability for attorneys fees in this action;
“And it appearing that the present fair market value of the said property is in the sum of Eighteen thousand dollars ($18,000.00); and,
“Whereas, the only community interest of said Willard J. Chasteen in said property arises by the payments of principal upon the indebtedness against said property, owing to the Richard Gill Company, or its assigns, and to M. Augusta Rhodes, since the [775]*775date of their marriage on January 22, 1953, to the date of the decree.
“Now Therefore, it is covenanted and agreed that the interest of the said Bradford F. Miller in the said property shall be in the proportion that the community interest of the said Willard J. Chasteen, computed as aforesaid, bears to the present fair market value of the property, which value is in the sum of Eighteen thousand dollars ($18,000.00).
“Witness our hands this 31st day of July, 1956.-
“/s/ Ada M. Chasteen
“/s/ Bradford F. Miller”
It is well settled that in order to effect transfer of title to land the deed must be delivered to and accepted by the grantee. Anglin v. Cisco Mortgage Loan Co., 135 Tex. 188, 141 S.W.2d 935; Cox v. Payne, 107 Tex. 115, 174 S.W. 817; Koppelmann v. Koppelmann, 94 Tex. 40, 57 S.W. 570; 14 Tex.Jur. 538, Deeds, § 98. In order to constitute delivery, a deed of conveyance must be placed in the hands of the grantee, or within his control, with the intention that it is to become presently operative as a conveyance. Bell v. Rudd, 144 Tex. 491, 191 S.W.2d 841. Without such intention manual delivery to the grantee is insufficient to pass title. Bell v. Rudd, supra; Anderson v. Hutto, Tex.Civ.App., 126 S.W.2d 709; Bibby v. Bibby, Tex.Civ.App., 114 S.W.2d 284. At the time the deed became effective as a conveyance the Chas-teens were divorced and the former husband and wife were single persons. It is also well settled that where, in a divorce decree, the court does not set aside the homestead to the use of the wife and minor children, as it could have done, the former husband and wife stand toward each other as mere tenants in common, subject to all the rules and regulations of strangers bearing toward each other that relationship. Kirkwood v. Domnan, 80 Tex. 645, 16 S.W. 428. The holding in that case has been consistently followed. McDaniel v. Thompson, Tex.Civ.App., 195 S.W.2d 202, error ref.; Myers v. Crenshaw, Tex.Civ.App., 116 S.W.2d 1125, affirmed 134 Tex. 500, 137 S.W.2d 7; O’Neil v. O’Neil, Tex.Civ.App., 77 S.W.2d 554. Therefore, the ex-husband’s deed conveying his interest in the property after the divorce, is a valid conveyance of such interest as he had.
It was stipulated by the parties in this suit that the land was the separate property of Mrs.
Free access — add to your briefcase to read the full text and ask questions with AI
BARROW, Justice.
This suit was filed by appellant, Ada M. Chasteen, to set aside and hold for naught a deed from her former husband, Willard J. Chasteen, to appellee, Bradford F. Miller, on the ground that it was in fact a mortgage on the homestead of appellant and said Willard J. Chasteen. Appellant alleged that she did not join in the conveyance, that the property was at the time her homestead, and that such homestead was in the divorce decree awarded to her, that, therefore, the deed from her husband alone, without her joinder, is invalid under Article 16, § 50, of the Texas Constitution, Vernon’s Ann.St. Appellant seeks to remove cloud from her title to the property by virtue of said deed from her former husband to appellee. The trial was to the court without a jury. A take nothing judgment was rendered against appellant.
Appellant predicates her appeal upon three points: (1) The trial court erred in failing to allow her to show that the deed was a mortgage as security for at-[774]*774to rney’s fees. (2) The court erred in holding that the deed in question was valid, because it was not acknowledged in the manner required by law. (3) The court erred in failing to void the deed, because the undisputed evidence shows that the same was a lien or mortgage in violation of Article 16, § 50, of the Texas Constitution.
Appellant’s first point should be overruled because' the record shows that the only evidence offered by appellant, and excluded by the. court, is an instrument which purports to be a statement of account due from appellant to appellee. The record shows that the document was simply offered by appellant without identification. The evidence was excluded by the court upon the objection that the instrument was not identified and because it was immaterial and irrelevant. The instrument was then introduced for the purpose of appellant’s bill of exception. Appellant offered no evidence to show where the instrument came from or that appellee had anything to do with it. The instrument does not purport to have been signed by appellee. Moreover, the instrument shows on its face that at least parts of it are immaterial. The appellant made no separate tender in evidence of any part thereof that might have been material. The record fails to show anywhere that the trial court failed or refused to permit appellant to show that the deed in question was in fact a mortgage. The court did not err in sustaining the objection and excluding the document offered under the circumstances.
. By appellant’s second point she contends that the deed is void because it was not joined in by her as the wife of Willard J. Chasteen at the time of the conveyance, as required by Art. 1300, Vernon’s Ann.Civ. Stats. While it is true that the deed was executed and acknowledged by Chasteen on July 30, 1956, it was executed at Wichita Falls, Texas, and mailed to San Antonio with the express understanding that it was not to be delivered unless and until the divorce was granted. The undisputed evidence shows that it- was received in San Antonio on July 31, 1956, the same day the divorce was granted, but was actually delivered after the divorce was granted. After the divorce was granted, the following instrument was executed by appellant and appellee:
“This Agreement, by and between Ada M. Chasteen and Bradford F. Miller, her attorney, Witnesseth:
: “Whereas, Bradford F. Miller has rendered to Ada M. Chasteen legal services in connection with her divorce action against her husband, and as a result thereof she has made a property settlement and obtained a decree of divorce from her husband, and has agreed with her said attorney that a reasonable attorney’s fee for the services rendered by him in connection with said divorce action would be substantial; and
“Whereas, she has no funds with which to pay the same in cash, and the said Bradford F. Miller has agreed to accept in payment of his fee for such services the community interest her former husband Willard J. Chasteen did have in and to the former homestead located at 845 Sunshine Drive, San Antonio, Texas; and
“Whereas, the said Willard J. Chasteen has agreed to convey his said community interest to the said Bradford F. Miller in payment of his liability for attorneys fees in this action;
“And it appearing that the present fair market value of the said property is in the sum of Eighteen thousand dollars ($18,000.00); and,
“Whereas, the only community interest of said Willard J. Chasteen in said property arises by the payments of principal upon the indebtedness against said property, owing to the Richard Gill Company, or its assigns, and to M. Augusta Rhodes, since the [775]*775date of their marriage on January 22, 1953, to the date of the decree.
“Now Therefore, it is covenanted and agreed that the interest of the said Bradford F. Miller in the said property shall be in the proportion that the community interest of the said Willard J. Chasteen, computed as aforesaid, bears to the present fair market value of the property, which value is in the sum of Eighteen thousand dollars ($18,000.00).
“Witness our hands this 31st day of July, 1956.-
“/s/ Ada M. Chasteen
“/s/ Bradford F. Miller”
It is well settled that in order to effect transfer of title to land the deed must be delivered to and accepted by the grantee. Anglin v. Cisco Mortgage Loan Co., 135 Tex. 188, 141 S.W.2d 935; Cox v. Payne, 107 Tex. 115, 174 S.W. 817; Koppelmann v. Koppelmann, 94 Tex. 40, 57 S.W. 570; 14 Tex.Jur. 538, Deeds, § 98. In order to constitute delivery, a deed of conveyance must be placed in the hands of the grantee, or within his control, with the intention that it is to become presently operative as a conveyance. Bell v. Rudd, 144 Tex. 491, 191 S.W.2d 841. Without such intention manual delivery to the grantee is insufficient to pass title. Bell v. Rudd, supra; Anderson v. Hutto, Tex.Civ.App., 126 S.W.2d 709; Bibby v. Bibby, Tex.Civ.App., 114 S.W.2d 284. At the time the deed became effective as a conveyance the Chas-teens were divorced and the former husband and wife were single persons. It is also well settled that where, in a divorce decree, the court does not set aside the homestead to the use of the wife and minor children, as it could have done, the former husband and wife stand toward each other as mere tenants in common, subject to all the rules and regulations of strangers bearing toward each other that relationship. Kirkwood v. Domnan, 80 Tex. 645, 16 S.W. 428. The holding in that case has been consistently followed. McDaniel v. Thompson, Tex.Civ.App., 195 S.W.2d 202, error ref.; Myers v. Crenshaw, Tex.Civ.App., 116 S.W.2d 1125, affirmed 134 Tex. 500, 137 S.W.2d 7; O’Neil v. O’Neil, Tex.Civ.App., 77 S.W.2d 554. Therefore, the ex-husband’s deed conveying his interest in the property after the divorce, is a valid conveyance of such interest as he had.
It was stipulated by the parties in this suit that the land was the separate property of Mrs. Chasteen at the time she married, that' it was her homestead and continued to be her homestead up to the time of the execution of the instruments involved herein. However, the court did not in the divorce decree set aside the property to her as her homestead. The Supreme Court says that the surviving spouse can deal with the homestead as he wishes. “Under our laws, there can be no doubt of the full power of a surviving husband or wife to mortgage the homestead owned as his or her separate estate, or the community homestead to secure a community debt, although it constitutes, at the time, the home of the other constituents of the family.” Straus v. Brooks, 136 Tex. 141, 148 S.W.2d 393; Spencer v. Schell, 107 Tex. 44, 173 S.W. 867. After her divorce, therefore, Mrs. Chasteen had the power to claim or to forego her claim to her homestead. After the divorce, by her own act, she agreed “that the interest of the said Bradford F. Miller in the said property shall be in the proportion that the community interest of the Willard J. Chasteen, computed as aforesaid, bears to the present fair market value of the property * * Mrs. Chasteen, after the divorce, contracted in writing that her attorney, Bradford F. Miller, had a described interest in property over which she had the power to claim or not to claim a homestead interest. She exercised that power by disclaiming the interest. Appellant’s second point is overruled.
In her third point, appellant relies entirely on the written agreement executed by appellee and herself. She con[776]*776tends that the agreement shows on its face that she is giving a mortgage on the homestead to appellee. The instrument speaks for itself. By it she agrees to the proportionate interest of her former husband in the property, and that appellee has agreed and docs agree to accept the former husband’s interest in the property in payment of his attorney’s fees and not as security for a debt for attorney’s fees.
Nowhere in this record, the pleadings or evidence in the trial court, or in her brief, either by point, statement, argument or citation of authorities, in this Court, does appellant even intimate that Willard J. Chasteen had no interest in the property. Her entire suit, as shown by her pleading in the trial court and her brief in this Court, is based upon a claim that the husband, during the existence of the marriage, executed a deed purporting to convey an interest in the homestead, which was in fact a mortgage; and that the instrument was void because (1) it was a mortgage on the homestead, executed during the marriage, and (2) because the instrument was not signed and separately acknowledged by her, the wife, in the form and manner required by law for conveyance of the homestead. It is not disputed that the property was her separate property at the time she married Chasteen. It is not disputed that it was encumbered with valid liens, and that during the marriage, community funds in the amount of $2,625.46 were paid in the discharge of such liens. It is not disputed that she executed the contract with appellee at a time when she was a feme sole, fully and legally competent to contract with reference to her property. This record contains no suggestion that she was misled, overreached or defrauded by appellee in the making of such contract. Undoubtedly, at the time of the conveyance Chasteen did have an equity, interest or charge against the property, and did have such interest under the undisputed evidence. This is not a suit for partition where the equities should be adjusted. In Hillen v. Williams, 25 Tex.Civ.App. 268, 60 S.W. 997, at page 998, in a similar situation where community funds were used to pay off purchase money indebtedness, the Court said:
“If any portion of the purchase money for said land can be shown to have been paid with community funds of plaintiff and said Dorsett, said community estate was entitled to reimbursement for the amount so paid, and the same was a charge upon said land.”
That case was cited with approval by the Supreme Court in Dakan v. Dakan, 125 Tex. 305, 83 S.W.2d 620, at page 628, wherein the Court said:
“In allowing a reimbursement for funds spent, if any portion of the purchase money for said land can be shown to have been paid with separate funds of Mrs. Dakan, and with community funds of plaintiff and G. W. Dakan, Mrs. Dakan will be entitled to reimbursement for the amount of her separate funds and her share of the community funds so paid; * *
Thus, it is apparent from the record that Chasteen had an equity interest in or charge against the land; that he, with her agreement, conveyed the same to appellee in settlement of attorney’s fees due to him, and that she, rather than have the same adjusted by the court, agreed with appellee as to their respective interests in the property.
The judgment of the trial court is affirmed.