194 S.W. 478
RICHARDS et al. 
v. 
HARTLEY et al.
(No. 7768.)
Court of Civil Appeals of Texas. Dallas.
April 7, 1917.
Page 479
        Appeal from District Court, Freestone County; A. M. Blackman, Judge.
        Partition suit by J. Hartley and others against W. H. Richards and others. From a decree declaring 
the various interests and appointing commissioners, etc., the defendants appeal. Reversed and remanded.
        Boyd & Bell, of Teague, Wm. Watson, of Centerville, and Jno. A. Newsom, of Buffalo, for appellants.
        RASBURY, J.
        The appellees, Jestina, Leroy, and Dalton Hartley, by next friend, J. W. Hartley, sued appellants, 
Maggie Baker and her husband, John Baker, Mrs. Willie Downs, W. H. Richards, and G. T. Davis, to 
compel, among other things, a partition of certain lands in Freestone county, alleged to be owned jointly 
by appellees and appellants. Mrs. Willie Downs adopted the pleading of appellees. The appellants Richards 
and Davis, in substance, answered that they purchased the land sought to be partitioned for a valuable 
consideration from Mrs. M. L. Dare, grandmother of appellees and mother of Mrs. Baker and Mrs. Downs, 
who at the time of the conveyance claimed same as her separate estate, and without notice of appellees' 
claim thereto. Mrs. Baker, in effect, adopted the pleading of Richards and Davis, but, during a suspension 
of the trial, disclaimed all interest in the land, and her pleading so stood when judgment was rendered. 
There was trial before the court, resulting in a decree declaring that the appellees owned jointly an 
undivided one-sixth interest therein, Mrs. Willie Downs a similar one-sixth interest, and Richards and 
Davis jointly a similar four-sixths interest. Commissioners were appointed and directed to partition the 
land under the statutory rule.
        The record does not contain a statement of facts, but the trial judge did file conclusions of fact; 
those facts found by the court and bearing upon the issues presented in the briefs being these: G. J. Dare 
and Mrs. M. L. Dare were husband and wife. During the life of both, G. J. Dare purchased, with community 
funds, the land sought to be partitioned, taking the title thereto in his wife's name. G. J. Dare died 
January 25, 1910. After the death of G. J. Dare, this suit was commenced. Mrs. Dare died during 
pendency on May 1, 1914. Subsequent to the death of her husband, however, and on January 23, 1913, 
Mrs. Dare conveyed the land to appellants Richards and Davis for a cash consideration, but not for the 
purpose of paying community debts. The appellees Jestina, Leroy, and Dalton Hartley are the only children 
of Lucy Hartley, formerly Dare, daughter of G. J. and M. L. Dare. Willie Downs and Maggie Baker are also 
daughters of G. J. and M. L. Dare, who with the Hartley children constituted all the heirs when Mrs. Dare 
died.
        The first complaint is directed to the action of the court in excluding certain testimony tendered by 
appellants. The parties occupying the respective attitudes, and the issues being as we have stated, the 
trial was begun. During its progress, appellants, defendants below, tendered their codefendant, Maggie 
Baker, as a witness. She testified that she was the daughter of G. J. and M. L. Dare, and that after G. J. 
Dare purchased the land sought to be partitioned she had a conversation with him concerning same. The 
substance of the conversation was that Mrs. Baker suggested to her father that she was convinced that 
Jim Hartley, his son-in-law, was not his friend, and that in case Dare died before his wife Hartley would 
attempt to "beat" her out of all she had. To the suggestion her father replied:
        "One thing certain, Jim Hartley, or anybody else, would not be able to beat her out of the land he 
had deeded to her."
        Upon objection, the testimony was excluded because of the provisions of article 3690, Vernon's 
Sayles' Civ. Stats., familiar to bench and bar, which, among other things, declares in substance that in 
actions by or against the heirs of a decedent, in which judgment may be rendered for or against them as 
such, neither party shall be allowed to testify against the others as to any transaction with or statement 
by such decedent, etc. The testimony was obviously offered for the purpose of showing that G. J. Dare 
intended the property for the separate use and benefit of his wife, and was as obviously within the 
inhibition of the statute. Mrs. Baker was a defendant, had adopted the answer of Richards and Davis, 
which asserted that the land was the separate property of Mrs. Dare, and that they were innocent 
purchasers for value without notice, and yet had not been called to testify by the appellees.
        The foregoing proceedings were had April 4, 1916, at which time the hearing was postponed until 
April 17, 1916, to enable one of the parties (the record does not disclose which) to secure testimony not 
then available. After the postponement and on April 11, 1916, Mrs. Baker, the witness, filed a disclaimer 
in the case in the manner and form required of any interest in the land. When the hearing was resumed 
on April 17, 1916, the testimony of the witness, amplified and extended, was again tendered and again 
excluded for the same reason; the court stating that she remained a party to the suit in which judgment 
might be rendered against her. While Mrs. Baker, as we have said,
Page 480
was such a party to the suit as prevented her from testifying to any statement by her father concerning 
his purpose in taking title in his wife to the land sought to be partitioned, yet when she filed her disclaimer 
the bar of the statute was removed. Markham v. Carothers, 47 Tex. 25; Gilder v. Brenham, 67 Tex. 345, 
3 S. W. 309; Oury v. Saunders, 77 Tex. 278, 13 S. W. 1030; Britton v. Tischmacher, 31 S. W. 241; 
Mayfield v. Robinson, 22 Tex. Civ. App. 385, 55 S. W. 399; Barrett v. Eastham, 28 Tex. Civ. App. 189, 67 
S. W. 200. While the learned trial judge correctly observed that Mrs. Baker, even after disclaiming, 
remained a party to the suit against whom judgment might be rendered, it was also true that she had 
voluntarily abandoned all claim to the land in controversy, and, while by law entitled to recover her costs, 
she had no actual interest in the result of the suit, which, if anything, would have induced her to seek the 
advantage that might be presented as the result of the death of her father. Her disclaimer was an 
admission of appellees' right to the land as against her and a denial of any title on her part. Herring v. 
Swain, 84 Tex. 523, 19 S. W. 774. While judgment would be necessarily rendered against her for one or 
the other of the contestants, she had no such interest in the result as is contemplated by the statutes. 
Such is the substance of the rule announced in the cases cited. For that reason, we conclude the evidence 
should have been formally admitted and considered by the court.
        By appropriate assignment, it is also contended that the judgment is contrary to law and the 
evidence, since it appears from the evidence that the land was in fact the separate estate of Mrs. M. L. 
Dare. This contention is sought to be supported first by the court's finding that the land was bought by 
Dare with community funds and conveyed to his wife; and, second, by the evidence of Mrs. Baker, which 
the court excluded. As we have said, there is no statement of facts in the record, and we do not know 
whether the court based his conclusions alone on the recitations in the deed, which is not before us, but 
on other facts developed at trial in connection with the deed. Even if his action was based alone on the 
bare facts stated by the court, they are nevertheless sufficient to sustain the judgment, since it is 
elementary that when land is bought by the husband with community funds, and at his instance the land 
is conveyed to the wife, the presumption, as to subsequent purchasers, is that it is community property, 
while as between the husband and wife and their heirs such a deed may, in the absence of other rebutting 
circumstances and facts, be sufficient to show that it was intended by the husband to thereby make it the 
separate property of the wife. As relates to the facts which Mrs. Baker would have testified to, it is certain 
that we may not consider them in support of the assignment. Those facts are before us only for the 
purpose of determining their admissibility under the terms of article 3690, supra. Even if the testimony 
had been admitted, the court may, so far as we may know, have concluded as he did that the property 
was community, basing his conclusion on other testimony of a conflicting nature; for, in the absence of a 
statement of facts, every fact necessary to the correctness of the judgment will be presumed, unless it 
appears that on the facts found and recited by the judge his judgment is erroneous. Kimball et al. v. 
Houston Oil Co. et al., 100 Tex. 336, 99 S. W. 852. On the facts found by the court and appearing in the 
record, it cannot be said that his judgment is erroneous.
        Because we are of opinion that the testimony of Mrs. Baker was material and admissible, it becomes 
our duty to reverse the judgment and remand the cause for another trial not inconsistent with the views 
herein expressed.
        Reversed and remanded.