Celli v. Sanderson , 207 S.W. 179 ( 1918 )

Being unable to agree with my Associates in the conclusion that the judgment of the trial court should be affirmed in its entirety, I will, in compliance with the statute, as briefly as I can, state the grounds of my dissent.

I fully concur in the holding of my Associates that, for the reasons stated in the opinion of the majority, none of appellant's assignments of error can be sustained unless some fundamental error is pointed out, and we all agree that, if the pleading is insufficient to support the judgment, fundamental error is shown, and the judgment cannot be affirmed.

In my opinion this suit, in so far as the purpose is to effect a division of the common property of plaintiff and defendant, is governed by the same rules of pleading that have been uniformly applied by our courts in partition suits, and the question of whether the plaintiff's petition is sufficient to entitle her to recover the value of her one-half of the property owned in common by her and the defendant, which the evidence shows has been sold by the defendant since the decree of divorce was granted, is in no way affected by the equitable nature of the suit, nor by the provisions of the statute quoted in the opinion of the majority, which authorizes a court "pronouncing a decree of divorce from the bonds of matrimony to order a division of the estate of the parties in such way as to the court shall seem just and right, having due regard to the rights of each party and their children, if any." No decree of divorce was pronounced in this case, and therefore this statute, the purpose of which was to broaden in divorce proceedings the general equitable powers of the court in making partition of partnership property, primarily for the better protection of the children, the fruits of an unhappy marriage, and also to authorize the court, as far as right and justice should permit, to take into consideration, in dividing the community property, the relative necessities of the parties and the innocence of the one party and the culpability of the other in the severing of the marital relations, has no application. The decree of divorce was granted nearly two years before this suit was brought, and that decree was not sought to be disturbed by this proceeding; the only portion of the original judgment in which the divorce was granted which plaintiff asked to have set aside being that awarding to defendant all of the community property belonging to the parties, except the lots given the children in which plaintiff was awarded a life estate. The rights of the children were fully protected by the original decree and by the judgment in this case, and appellant does not complain of that portion of the judgment. The parties have both remarried, and the question of which of the two was more culpable in making their divorce necessary was not an issue in this suit and could not be now inquired into with profit or propriety. Such being the case, it seems clear to me that the statute above quoted can have no possible bearing upon the question presented by this appeal. The suit is simply one to set aside a judgment disposing of property rights of the parties on the ground that such judgment was obtained by fraudulent misrepresentations, and to partition the specific property disposed of by said fraudulent judgment and enumerated and described in the petition in this suit. The petition of the plaintiff, after alleging the fraudulent misrepresentations of the defendant by which she was induced to sign the agreement upon which the former judgment of July 9, 1914, disposing of her property rights, was based, contains the following:

"Plaintiff shows that at the time of the above statements and representations by defendant, through his agent, O. Del Papa, to wit, on or about the 9th day of June, 1914, plaintiff and defendant were husband and wife, having been married on the _____ day of June, 1904, and had acquired the following described property with community funds;

"Lot fourteen and the west half of thirteen (L. 14 W. 1/2 13) in the northwest quarter of outlot ninety-one (91) and improvements, purchased with community funds on February 1, 1906, from George W. Wythe.

"The east half of lot thirteen and the west half of lot twelve (E. 1/2 L. 13 and W. 1/2 L. 12) and improvements, in the northwest quarter of outlot ninety-one (91) in the city and county of Galveston, purchased with community funds on April 29, 1907, from Mrs. N. F. Branch.

"Lot No. three (3), in the southwest quarter of outlot ninety-one (91), purchased with community funds on December 1, 1910, from Mrs. Mary A. O'Shaugnessy.

"Lot four (4) and improvements, in the southwest quarter of outlot ninety-one (91) in the city and county of Galveston, purchased with community funds on January 15, 1912, from Jessie I. May.

"A saloon at 2402 Postoffice street, furniture, fixtures, leasehold and license, acquired about the year 1912, the exact date of which is not known, with community funds.

"A one-story brick building in the rear of 2402 Postoffice, acquired about the year 1913, with community funds.

"An undivided one-half interest and partnership acquired from L. W. Levy Co., in a wholesale liquor business at 2401 Strand street, with community funds on or about the _____ day of _____ 19__, which partnership was thereafter conducted under the name of Celli Del Papa, said plaintiff and defendant having an undivided one-half interest in said partnership and its assets.

"One automobile, purchased during the year 1913, with community funds.

"And plaintiff further shows:

"That lots 13 and 14 and the west half of 12 in the northwest quarter of outlot. 91 and improvements at the above dates are and were of the reasonable value of $10,000.

"That lots 3 and 4 in the southwest quarter of outlot 91 and improvements were of the reasonable value of $5,500.

"That the saloon at No. 2402 Postoffice street, including fixtures, lease, and license, were of the value of $4,500.

"That the brick building in the rear of 2402 Postoffice street was and is of the reasonable value of $2,000.

"That the automobile was and is of the reasonable value of $1,500.

"That the horse and buggy were and are of the reasonable value of $150.

"That the partnership interest of one-half in the firm of Celli Del Papa and the assets of said business, as plaintiff is now informed and believes, is and was of the reasonable value of $25,000.

"That plaintiff has no information as to the community funds on deposit in bank and has been unable to obtain any information concerning same.

"That the community estate was of the reasonable value of about $48,500, and plaintiff's one-half was of the reasonable value of about $24,250, to which she was entitled."

Then follow allegations of plaintiff's ignorance, at the time the agreement was made, of what property was owned by the community estate and of the debts due by the estate and her reliance upon the representations made by the defendant. She also alleges her ignorance of the contents of the deed by which she conveyed her interest in the homestead to the children of herself and defendant, only reserving to herself a life estate therein as long as she should remain unmarried, and the further misrepresentations of the defendant by which she was made to believe that in signing said deed she was executing a will devising her interest in the property to her children.

The further allegations of the petition in any way material to questions we are considering are as follows:

"Plaintiff avers that said agreement induced by defendant's said false and fraudulent representations and without consideration to her and said deed and decree based thereon were inequitable and unfair and unjust to her, and she has been deprived of her proper share in said community estate thereby, and said deed and decree, in so far as it disposed of her community estate and restricted her right to marry with penalty of forfeiture of her estate, be set aside, avoided, or modified, and that defendant be required to account for and file inventory of all the community estate owned by plaintiff and defendant and controlled by defendant on July 9, 1914, and that an auditor be appointed to audit the accounts of defendant, and that a fair and equitable division and partition of the said community property be had and plaintiff's portion awarded her."

The prayer of the petition is correctly copied in the opinion of the majority.

From the foregoing allegations and the prayer of the petition it is thus apparent that the suit is one for partition of specific property which the plaintiff alleges is the common property of herself and defendant. There is no allegation from which it can be inferred directly or indirectly, or that intimates, that the property described in the petition and sought to be partitioned has been sold or disposed of by the defendant, and, in the absence of such allegation, it matters not what the evidence may have shown, plaintiff was not entitled to recover the value of the property. It is hardly necessary to cite authority in support of the proposition that evidence without pleading to support it cannot form the basis of a judgment, and that, to entitle plaintiff to recover the value of her one-half of the community property of herself and defendant, it was just as necessary to allege, as it was to prove, that defendant had sold or converted said property. No rule of decision is more established in the jurisprudence of this state.

The opinion of the majority, while recognizing this rule, refuses to apply it in this case, on the ground, if I correctly understand the opinion, that plaintiff's petition contains sufficient allegations, in view of the character of the suit and the provisions of the statute above, quoted, to support the judgment.

If this statute could be held applicable in this case, it could not affect the question of the sufficiency of the pleading, because it cannot be construed as authorizing the court in a divorce case to disregard all rules of pleading and render a judgment without any allegations in the petition of facts entitling the plaintiff to such judgment.

The statement of the allegations of the petition made in opinion of the majority are merely general conclusions of the writer, no part of the petition being set out in the opinion except the prayer. As before stated, I have set out above every material allegation of the petition in regard to the property or property rights claimed by the plaintiff, and no case can be found, I care not what may have been the character of the suit, which holds that these allegations are sufficient to entitle a plaintiff suing for partition of partnership or community property specifically described in the petition to recover the value of the property if the proof upon the trial of the case shows that it has been sold by the defendant.

The case of Simons v. Simons, 23 Tex. 344, cited and relied on by the majority, does not sustain their contention. The appellant's brief in that case, as shown in the report of the case, assailed the judgment upon three grounds only:

"First. That the trial court erred in converting the proceeds of the sale of his (appellant's) separate property into community property. Second. In making the increase of lands (his separate property) common property. Third. In giving to the defendant a larger amount than the verdict would warrant."

It thus appears that no question of the sufficiency of the pleading was raised in the case. All that was necessary to an understanding of the question discussed in the opinion was to state that the suit was one for divorce and division of community property and for alimony, and this was all that the report shows as to the pleading, except that there was a prayer that defendant be required to file an inventory of the community property. All that the case decides is that none of the three objections to the judgment presented by the appellant could be sustained. I cannot see that this decision has any bearing upon the question presented by this appeal.

I think the judgment of the court below should be affirmed in so far as it sets aside the former judgment disposing of plaintiff's interest in the community property and fixes the rights of plaintiff and her children in the homestead property, but that portion of the judgment adjudging that plaintiff recover of defendant the sum of $13,641.41 should be reversed and remanded for a new trial on that issue.