Leath v. Leath

Court of Appeals of Texas

Leath v. Leath

233 S.W. 351, 1921 Tex. App. LEXIS 883

CourtCourt of Appeals of Texas

DecidedJune 4, 1921

DocketNo. 9657. [fn*]

StatusPublished

This text of 233 S.W. 351 (Leath v. Leath) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Leath v. Leath, 233 S.W. 351, 1921 Tex. App. LEXIS 883 (Tex. Ct. App. 1921).

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Opinion

DUNKLIN, J.

Plaintiffs, the children of J. O. Leath and his deceased wife, Mrs. Nannie Leath, instituted this suit against their father for a partition of property belonging to the community estate of their father and mother. From a judgment in favor of plaintiffs the defendant has appealed.

In their petition plaintiffs alleged that while their mother was on her death bed and a few days before her death the defendant, knowing that she was about to die, sold a tract of land belonging to the community estate far below its market value, for the fraudulent purpose of thereby cheating plaintiffs out of the rights in said property which plaintiffs would soon inherit from their mother. The amount so sacrificed by said sale was alleged and plaintiffs prayed that defendant be held to an accounting therefor in the partition of the estate so sought.

[1] Although it was not specifically charged that defendant made the sale for the purpose of defrauding his wife, the allegations were substantially to that effect. Accordingly we overrule appellant’s assignments of error presenting that objection to the pleading, that there was no allegation of an intention to defraud the wife in the absence of which plaintiffs could not complain.

Furthermore, in answer to special issue, the jury found in plaintiffs’ favor on that issue of fraudulent sale; also that Mrs. Nannie Leath was insane at the time she joined with her husband in the conveyance. And the trial judge further found, in effect, that defendant sold the property for $1,995 less than its market value.

[2] The record before us contains no statement of facts, in the absence of which it must be presumed that the judgment in all other respects was sustained by the evidence.

[3] Nor do we perceive any fundamental error in awarding a partition while there waa outstanding and unpafid indebtedness against the community estate, and decreeing that defendant Leath should pay the same. According to further findings defendant still owed plaintiffs $1,834.28, as their half of the community property converted by him, after crediting him with the amount of said indebtedness so charged to him, and defendant’s possession of the homestead of 200 acres of land being undisturbed, and there being no partition of the homestead. We fail to understand why the equities between the parties could not thus be adjusted, no rights of creditors other than plaintiffs being affected by the decree.

The judgment is affirmed.

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DUNKLIN, J.

Plaintiffs, the children of J. O. Leath and his deceased wife, Mrs. Nannie Leath, instituted this suit against their father for a partition of property belonging to the community estate of their father and mother. From a judgment in favor of plaintiffs the defendant has appealed.

In their petition plaintiffs alleged that while their mother was on her death bed and a few days before her death the defendant, knowing that she was about to die, sold a tract of land belonging to the community estate far below its market value, for the fraudulent purpose of thereby cheating plaintiffs out of the rights in said property which plaintiffs would soon inherit from their mother. The amount so sacrificed by said sale was alleged and plaintiffs prayed that defendant be held to an accounting therefor in the partition of the estate so sought.

[1] Although it was not specifically charged that defendant made the sale for the purpose of defrauding his wife, the allegations were substantially to that effect. Accordingly we overrule appellant’s assignments of error presenting that objection to the pleading, that there was no allegation of an intention to defraud the wife in the absence of which plaintiffs could not complain.

Furthermore, in answer to special issue, the jury found in plaintiffs’ favor on that issue of fraudulent sale; also that Mrs. Nannie Leath was insane at the time she joined with her husband in the conveyance. And the trial judge further found, in effect, that defendant sold the property for $1,995 less than its market value.

[2] The record before us contains no statement of facts, in the absence of which it must be presumed that the judgment in all other respects was sustained by the evidence.

[3] Nor do we perceive any fundamental error in awarding a partition while there waa outstanding and unpafid indebtedness against the community estate, and decreeing that defendant Leath should pay the same. According to further findings defendant still owed plaintiffs $1,834.28, as their half of the community property converted by him, after crediting him with the amount of said indebtedness so charged to him, and defendant’s possession of the homestead of 200 acres of land being undisturbed, and there being no partition of the homestead. We fail to understand why the equities between the parties could not thus be adjusted, no rights of creditors other than plaintiffs being affected by the decree.

The judgment is affirmed.

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233 S.W. 351, 1921 Tex. App. LEXIS 883, Counsel Stack Legal Research, https://law.counselstack.com/opinion/leath-v-leath-texapp-1921.