On Motion of Appellants Mann for Additional Findings and for Rehearing.
In response to the motion of Ed F. Mann and Mallie D. Mann, for further findings of fact we make the following additional statement:
I. Ed F. Mann and J. P. White entered into two contracts for the sale of this land to' White. The first contract was dated July 20, 1919; ,the second contract, the one sued on, was dated August 13, 1919. The following points of difference between the two contracts are noted: (1) The first contract provided for a cash payment of $4,-760 and two notes for $5,000 each, payable to Ed F. Mann, while the second contract provided for a .cash payment of $7,380, and execution of one note for $7,380, payable to Mallie D. Mann. (2) The second contract contains a reference to the pendency of the suit by Gus J. Groos et al. v. Ed F. Mann, being suit No. 1280, referred to in the original statement and in this connection it was agreed that it was necessary, for Mann to clear the title of the cloud cast upon it by said suit, and it was further agreed that pending the clearing of such title White should go into possession of the property and in consideration for . such possession and use pay the annual interest due Haskell county thereon. The first contract contained no such provisions. (3) The second contract provided for the conveyance by Mann to White of an additional tract of land, not referred to in the first contract.
II. The first contract was canceled by agreement, and each party executed written releases thereof to the other. It is to be inferred that the reason for this action was the complication in the title, caused by the pen-dency of said suit No. 1280. Later Mann renewed the negotiations, which resulted in the execution of the second contract. When Mann and White were instructing the at*789torney how to draw this contract, and mention of the note to be executed by White was made Mann said, “Make that note payable to Mrs. Mann,” and this was all that was said about it. Mrs. Mann was present during some of the negotiations for the sale, and took some part in them, though it does not appear just when she was present, and she was not present at the time the contract was drawn and executed.
III. Mann executed notes to Haskell county for the purchase price of the land and secured their payment by deed of trust. He conveyed the respective tracts of land mentioned in the original opinion to Miller and to Henry, respectively, by warranty deeds, subject to the indebtedness due the county.
IY. The compromise agreement between Henry and Mann and Henry and Miller was made at the same time, and in that sense are parts of the same transaction, but the evidence shows that the negotiations were conducted separately and different figures and considerations entertained by the parties in arriving at the separate agreement between the respective parties. There is evidence to the effect that in the negotiations between Mann and Henry it was estimated by the parties that Henry, after paying all the amounts provided for in the contract between them, would have left “somewhere between $5,000 and $5,500,” and that it was understood that—
“Henry would get the White note. That was the basis of the computation and basis of settlement.”
[5] Appellants, in their motion for rehearing, lay much stress on the fact of the execution of the first contract between Mann and White, and that the second contract made a change in the payee of the note to be executed by White; the contention being that the execution of the second contract thus indicated a purpose to change the ownership of the note in question. It does not appear that the second contract was substituted for the first. The first contract was rescinded, and negotiations entirely abandoned, presumably on account of the complication in Mann’s title to the land. The second contract was executed on renewal of negotiations, and a number of its provisions differed from those of the former contract, so that it is to be regarded as an entirely independent contract. If the first contract had been merely changed for the purpose of making a change in the payee of the note, such fact might tend to materially strengthen the contention that it was Mann’s intention to make the note his wife’s separate property. But, as we have stated, this was evidently not the primary purpose of the parties. As we stated in the original opinion, the very fact that Mann proposed to take the title in the name of the wife has some tendency to indicate an intention to make the property her separate property. Cummins v. Cum-mins, 224 S. W. 904, and authorities. But this fact is not of itself sufficient to overcome the presumption that the property was community property, and we do not think the facts as to the execution of the first contract, and then later the second, furnish the additional testimony that is required to justify a finding of such an intention.
[6, 7] But appellants’ assignments do not require us to go this far. These appellants requested a peremptory instruction in Mrs. Mann’s favor, and moved for judgment on the verdict of the jury on the theory that it was conclusively shown that the contract created a separate interest in favor of Mrs. Mann, and their assignments are based on the claim of error in the denial of appellants’ position in these matters. No issue as to Mann’s intention was submitted to the jury, and none requested by appellants. If the evidence merely presented an issue as to the intention of Ed F. Mann, we should affirm the judgment on the ground that the court would have bqen authorized to find on such issue in the absence of a request for its submission. R. C. S. art. 1985. If it be true that the facts we have detailed are sufficient to indicate an intention to vest a separate interest in the property in Mrs. Mann, we do not think that it could be held that they conclusively show such intention. In addition to the general presumption that the property was community, there are other facts that have a tendency to show that the husband’s intention was to retain control'of the subject, at least until the consummation of the contract. The contract itself was ex-ecutory, and much else remained to be done by the husband thereunder before it could be consummated. His subsequent act in disposing of the note has some tendency to indicate his original intention as to the status of the property. Smith v. Strahan, 16 Tex. 325-326, 67 Am. Dec. 622; Cummins v. Cummins, 224 S. W. 905. We, therefore, hold to our original conclusion that these ‘assignments should be overruled.
If the facts required a finding that it was the husband’s intention to make a gift of the property to his wife, a serious question would remain as to whether the gift was so executed and accepted as to be irrevocable, but the conclusions already reached render it unnecessary to consider such question.
The motions, except in so far as they are sustained by the additional statements herein made, are overruled.