The only lands belonging to the community estate of the first marriage at the date of the death of the mother of Mrs. Harrison, Mrs. Butler, and Clifford Goodwyne, were the two tracts conveyed to A. A. Goodwyne by J. U. Fraley. A. A. Goodwyne conveyed one of the tracts to Mrs. Harrison and Mrs. Butler, and by a deed of gift conveyed a part of the other tract (identified as the "home tract") to his second wife. The part left unconveyed of one of the tracts is identified in the record as "lot 8A." It appears, from a finding which the parties treat as warranted by testimony, that Mrs. Harrison and Mrs. Butler each had received the interest she was entitled to in said lands as an heir of her mother, and from another finding that the interest they still respectively owned was 1/36 each as an heir of their brother Clifford in said lot 8A and the part of the tract given by A. A. Goodwyne to his second wife, referred to above as the "home tract." The court found that the minor G. B. Goodwyne owned the remaining 84/86 interest in the "home tract," further found that the tract was not capable of partition between the owners except by a sale thereof, and in the judgment he rendered directed that same be sold for the purpose of effecting a partition thereof. Appellant insists that the court should have satisfied the interest of Mrs. Harrison and Mrs. Butler in said "home tract" out of lot 8A, and that the judgment is erroneous in so far as it awarded them an interest in the "home tract" and directed a sale of that tract. As a support for his contention, appellant relies on cases like Furrh v. Winston, 66 Tex. 521, 1 S.W. 527, where the Supreme Court said:
"While a cotenant has no power to divest the title of his co-owners by selling a specific part of the common property, yet it is well established that a court of equity will protect such a purchaser, if this can be done without injury to the other owners, by setting apart to the vendee of the cotenant the particular tract bought."
We have been referred to and have found no case where the rule stated has been applied where the grantee was not a purchaser from but was a donee of the cotenant. While no reason now occurs to us why it should not be applied to a donee in a case in other respects within it, we will not determine whether it should or not, for it does not appear that this case is in other respects within the rule, in that it does not appear that it can be applied in favor of the donee's heirs without injury to others concerned. The court found that the estate of A. A. Goodwyne, deceased, consisted of a 66/72 interest in lot 8A and was indebted in sums exceeding the value of his said interest in said lot. So it is plain the effect of requiring the interest of Mrs. Harrison and Mrs. Butler in the "home place" to be satisfied out of lot 8A would be to injure either Mrs. Harrison and Mrs. Butler or the creditors of A. A. Goodwyne, deceased, for if that interest was so satisfied the value of the property to which the creditors have to look for payment of their claims would be decreased to that extent; and if, because the claim of the creditors on that lot was entitled to priority, said interest was not satisfied, Mrs. Harrison and Mrs. Butler would suffer the loss of the value thereof. The tract of land identified in the *Page 590 record as the "Goldberg tract" was conveyed to Mrs. Eddie Goodwyne by J. I. Carter by a deed dated April 17, 1906. The consideration for the conveyance, it appeared, was $50 in cash and $1,950 in the 39 promissory notes for $50 each made by said Mrs. Eddie Goodwyne and her husband, A. A. Goodwyne, payable one each month after the date of said deed. In the deed was a recital that the sale and conveyance was to "Mrs. Eddie Goodwyne (to her separate estate) and to her heirs." The land identified in the record as the "Kottle lots" was conveyed to said Mrs. Eddie Goodwyne by said J. I. Carter by a deed dated August 1, 1907. The consideration for the conveyance, it appeared, was $100 in cash and $1,150 in the 46 promissory notes for $25 each made by said Mrs. Eddie Goodwyne and her husband, A. A. Goodwyne, payable one each month after the date of the deed. In the deed was a recital that the sale was made to said "Mrs. Eddie Goodwyne for her separate use and benefit." The trial court found the fact to be that the entire consideration for each of the conveyances to Mrs. Eddie Goodwyne was paid by her husband, said A. A. Goodwyne, with money belonging to the community estate between them, and concluded that the two tracts therefore belonged to said community estate. Both the finding and the conclusion based on it are attacked as erroneous.
We think the finding was warranted by testimony before the court, but do not agree that the fact alone that the land was so paid for warranted the conclusion that it was community property and not a part of Mrs. Eddie Goodwyne's separate estate. Bank v. Hall, 30 S.W. 73; Markum v. Markum, 210 S.W. 835; Kahn v. Kahn, 94 Tex. 114, 58 S.W. 825; McCutchen v. Purinton, 84 Tex. 604, 19 S.W. 710; McClintic v. Midland Grocery Co.,106 Tex. 32, 154 S.W. 1157. The instant case, so far as the question now being considered is concerned, is not materially different in its facts from the case first cited above. There, as here, the conveyance was to the wife, the consideration being promissory notes made by her and her husband, which were paid with funds belonging to the community estate. There, as here, the deed contained a recital that the wife was to have and hold the land as her separate property. There, as here, it was contended that the land was community because it was purchased on a credit and paid for with funds belonging to the community estate between the grantee and her husband. The contention was overruled in an opinion so applicable to the instant case that we quote the greater part of it:
"Where lands," said Judge Finley, speaking for the Court of Civil Appeals, "acquired by onerous title during the existence of the marital relation, are conveyed by deed to the wife, in the absence of recitals in the deed to the contrary, it will be presumed that the property was purchased with community funds, and that it was intended to be held as community property. This presumption may be overcome by proof that the property was purchased with the separate estate of the wife, or that it was the intention of the husband in causing the deed to be made to her to make it her separate property. [Citing authorities.] When the deed to the wife expresses the intention that the property is designed to be her separate property, although the property be paid for out of community funds, as between the wife and the husband, or those claiming under him, with notice, it is her separate estate. In McCutchen v. Purington,84 Tex. 604[19 S.W. 710], Henry, J., speaking for the court says: `When the husband is solvent, he can convert community property into the separate property of the wife. If he causes a deed for property paid for with community funds to be made to the wife for her separate use, and causes the deed to so recite, it would vest the title in the wife as her separate estate. The husband has the management of both the community property and the separate estate of his wife; and when a deed containing recitals like the one now under consideration is found to have been made during the existence of the marriage, and no evidence is offered to explain it, the presumption must be indulged that it was made with the knowledge and consent of the husband, and for the purpose of making the property the separate estate of the wife. Such transaction may be intended as a fraud upon creditors, and may be attacked upon that ground, but no such issue was made in this case.' * * * In the case under consideration, while the property was paid for with community funds, the deed is made to the wife, and clearly recites the intention that the property is to be her separate estate. It was shown that her husband was insolvent at the time the deed was made; but appellant was not then, nor now, a creditor of the husband, and that fact alone does not render the conveyance subject to attack by it. It was not shown that the deed was made to the wife for the purpose of covering up the property from creditors, or that it was to be held for the benefit of the community. The issue of fraud in the conveyance does not arise in this case. The appellant, not being a creditor, is not in a position to attack the conveyance as being fraudulent against creditors, upon the ground that the husband was in debt, and could not make a gift of property to his wife, as against creditors."
It does not appear from any finding of the trial court, or from testimony in the record, that the conveyance by Carter of the "Goldberg tract" and the "Kottle tract" to Mrs. Eddie Goodwyne in her separate right was in fraud of rights of then existing creditors, or that her husband for any reason could not by gift to her make the land a part of her separate estate. We conclude, therefore, on the authority of the cases cited, that the trial court erred when he determined that said tracts belonged to the community estate of the second marriage and not to the separate estate of Mrs. Eddie Goodwyne. *Page 591 Belonging, as we think it appeared both said tracts did, to the separate estate of appellant's ward's deceased intestate mother, no reason is apparent in the record why the minor should not have been awarded a recovery as prayed for of an undivided one-half of the "Goldberg tract" A different situation is presented as to the "Kottle tract." That tract, it appears, was sold to Kottle for $2,000 to satisfy debts of the community estate of the second marriage, among which was one for $485.75 in favor of one Brown, who owned several of the notes made to Carter, representing a part of purchase money said estate owed for the land. Said indebtedness of $485.75 was secured by the vendor's lien retained on the land by Carter at the time he conveyed it to Mrs. Eddie Goodwyne. Therefore, while the recovery in favor of the minor should also be for an undivided one-half of this tract, it should be charged with the payment to Kottle of one-half of said sum of $485.75. The trial court found that the minor owned a one-fourth undivided interest in lots 1 and 4, block 10, known as the "Samuelson lots," but concluded that a fair adjustment of equities be found to exist between the minor and his father and sister, who owned the other three-fourths and whose rights Samuelson had acquired, entitled Samuelson to all the land on payment of $125 to the minor. The theory on which the trial court acted, it seems, was that, notwithstanding the minor was not bound by the partition which the court undertook to make in 1912, in suit No. 1338, the rights of others predicated on the validity of the judgment then rendered should be disturbed only when and so far as it was necessary to disturb them to enforce superior rights in the minor. In that suit the court allotted the "home place" to the minor; lot 1, block 10, to his father; and lot 4, block 10, to his sister. The court was of opinion in the instant case that the allotment as made by the court in said partition attempted in 1912 would have been a fair one to the minor had the "home place" belonged, as the court in that case assumed it did, wholly to the minor and his sister and father, and was unfair to the minor because Clifford Goodwyne, who was not a party to that suit, owned a one-sixth undivided interest in the land. In the instant case the court below found that the difference between the value of the "home place" (less the interest of Clifford Goodwyne therein), which he awarded to the minor, and the value of the interest the minor owned in that place and lots 1 and 4, block 10, was $125, and concluded that the rights of both the minor and Samuelson would be most effectually conserved by permitting the latter to pay the former said $125 and take the lots free of his claim thereon.
It is insisted that the trial court was without power to divest the minor of his title to an interest in said lots 1 and 4. We think the contention should be overruled. That the court had such power on the facts as he found them to be seems to be established by the authorities. 30 Cyc. 238, and authorities there cited; Stone v. McGregor, 99 Tex. 51,87 S.W. 334; Ferguson v. Stringfellow, 47 Tex. Civ. App. 449, 106 S.W. 762. It is further insisted that the adjustment made by the trial court wronged the minor because Samuelson should have been and was not charged with the payment to the minor of a part of the rents accruing from the lots awarded to Samuelson. It appears from the court's findings that the rented value of the lots from the time Samuelson took exclusive possession of same was $25 per month, but it does not appear that Samuelson in fact received anything as rent on the property during the time he had such possession, nor does it appear that the minor ever demanded of Samuelson and was refused a right to share with him the possession and use of the lots. Under these circumstances, we do not think it should be held that the trial court erred when he failed to award the minor a recovery of anything on account of rents. Thompson v. Jones,77 Tex. 626, 14 S.W. 222; Bailey v. Laws, 3 Tex. Civ. App. 529, 23 S.W. 20.
The judgment will be so reformed as to award the guardian of the minor G. B. Goodwyne (1) a recovery of an undivided onehalf of the "Goldberg tract"; and (2) a recovery of an undivided one-half of the "Kottle tract," but charged with the payment to Kottle of one-half of the $485.75 purchase money due to Brown; and (3) as to strike out and annul the part thereof which directs that the part relating to lot 8A be certified to the probate court for observance in the matter of the administration pending on the estate of A. A. Goodwyne, deceased. As so reformed, the judgment will be affirmed, and the cause will be remanded for such further proceedings as may be proper in the court below. *Page 592