Toler v. Fertitta (67 S.W.2d 229, 1934)

ORITZ, Judge.

This suit was filed in the district court of Jefferson county, Tex., by Sam Fertitta against Maud Toler and her husband, Walter Toler. The petition in the district court was in statutory form of trespass to try title to lot 8, in block 1, Bettie J. addition to the city of Beaumont in Jefferson county, Tex. The defendant answered by plea of not guilty. Trial in the district court, where the case was submitted to a jury on special issues, resulted in a verdict and judgment for the •Tolers. On appeal to the Court of Civil Appeals by Fertitta, that court affirmed the judgment of the trial court in part, and reversed and rendered it in part. In effect, the judgment of the Court of Civil Appeals awarded Sam Fertitta and Mrs. Toler each an undivided one-half interest in the lot in question. The judgment of the Court of Civil Appeals also awarded Sam Fertitta a judgment ¡fixing a lien on Mrs. Toler’s one-half interest in the lot for $28.47, with legal interest, for -one-half taxes paid by Fertitta on the entire lot. 43 S.W.(2d) 467. The Tolers bring error.

It appears from the record that Mrs. Toler has been twice married. Her former husband was one E. A. Le Roy. Her present husband is Walter Toler. On November 30,1922, while Mrs. Toler was the wife of Be Roy, and while the lot in question was the homestead of E. A. Le Roy and Mrs. Toler, his then wife, E. A. Be Roy executed and delivered to O. W. Howth and Sam Fertitta an instrument, in form a general warranty deed, whereby the ■said Be Roy purported to convey to Howth and Fertitta the lot in question. Mrs. Toler, then the wife of E. A. Be Roy, did not join in this deed. The deed recited a consideration