On Appellants’ Motion for Rehearing
In disposing of appellant T. O. Dillard’s assignments pertaining to the adjudication that a one half interest in the property at 2102 Winsted Lane was community property we made the statement that “There is no evidence that disposition or partition of this property was made in that suit (first divorce) or otherwise until October 17, 1953, when Mrs. Charlotte Dillard, the first wife, made conveyance by deed of her interest in this property to T. O. Dillard, who at that time was married to appellee.”
Appellant T. O. Dillard now challenges this statement and for the first time calls our attention to the following testimony taken from a more than 1000 page statement of facts.
Mr. Pearce Johnson, attorney for Mrs. Charlotte Dillard, the first wife, in her suit for divorce against T. O. Dillard, testified:
“Q. In that case was there a property distribution or property settlement? A. Yes, sir.
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“Mr. and Mrs. Dillard discussed the division of that property, and insofar as I recall the transaction, Mr. Dillard was to take the garage apartment. (2102) * *
Mr. Johnson testified that he did not participate in drawing the settlement papers regarding the real estate and he did not know whether the oral agreement about which he had testified was carried into effect.
Mr. Sidney Purser, an attorney, who represented Mrs. Charlotte Dillard in settling her community property rights with T. O. Dillard after their divorce testified regarding this property:
“It was divided by oral agreement, which manifested itself in the two deeds that I drew, I presume.
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“Well, the duplex (2102), as I recall, was given to Mr. Dillard.”
Our attention is also directed by appellants to the following testimony of T. O. Dillard:
“No, sir. I didn’t pay the first Mrs. Dillard a dime for 2102 Winsted Lane.”
As to this Mr. Purser testified:
“Q. In connection with that statement in the deed, that refers to other valuable consideration, Mr. Purser, consideration, that the deed to the garage apartment — do you recall what other consideration there might have been at that time? A. You mean as to the garage apartments
“Q. Yes, sir.
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“Q. Were there any other debts that were outstanding of the community ? A. Yes, sir; as I recall, at the time there was an indebtedness — I don’t remember the amount- — somewhere around eighteen hundred, nineteen hundred, two thousand dollars, somewhere in that neighborhood.
“Q. Was Mrs. Charlotte — was she to pay it or was Mr. Dillard to pay it after this settlement? A. Well, it was — you mean at the settlement?
*677“Q. Yes. A. Mr. Dillard was to pay it; it was to his father, as I recall.
“Q. Yes, sir. A. And Mrs. Dillard acknowledged to me that the debt was due.
“Q. Now, I want to ask you the question in regard to the garage apartment. Was there — and in regard to the other consideration recited in the deed, that there was paid an additional ten dollars, did this $1800 obligation have anything to do with it ? A. You mean with the consideration?
“Q. For the garage apartment. A. Yes, sir; Mr. Dillard assumed the indebtedness on the property.
“Q. And it was pursuant to that, that this deed was issued; is that right? A. Yes, sir, as I recall it.”
Mr. T. O. Dillard also testified that “I was given the deeds sometime after we were married. My first wife and I settled that thing out, and I got the deeds, I think, sometime in 1953” and that “probably” this property was acquired from his first wife with community funds of the second marriage.
It is our opinion that the status of this property has not been developed to the point that a fact finder could fairly determine that such property is the separate property of Mr. T. O. Dillard or community property of appellee and himself.
If the partition or settlement incident to the first marriage was complete before T. O. Dillard was remarried, the obligation to pay $1,800 would necessarily be the separate obligation of Mr. Dillard, and the property would be his separate property. If, however, such obligation was created during the second marriage, then it would be a community or separate obligation as the facts, measured by the rule stated in Goodloe v. Williams, cited in our original opinion, show it to be, and the status of the property to that extent at least would be fixed accordingly.
We reverse the judgment as to this property and remand the cause for retrial of all issues which are or may be properly presented concerning it. In all other respects our former judgment is left unaffected.
Appellants’ Motion for Rehearing is granted in part and in part overruled.
Motion granted in part and in part overruled.