Duke v. Reed , 64 Tex. 705 ( 1885 )

Willie, Chief Justice

. We think there was enough in the evidence to justify the court below in finding that Mrs. Dorn wilfully abandoned her husband. The plaintiffs’ witnesses proved that Robert Dorn and his wife lived unhappily together in the state of Mississippi before removing to Texas; that whilst he was kind and affectionate to her, she was cruel, harsh and inhuman in her treatment of him, and that this caused a separation between them in that state. This separation was brought about by her leaving her husband, and not by his abandoning her. He came to Texas without her, and she did not follow until some six or seven years afterwards. This, as must be inferred from the evidence, was in consequence of her abandonment, as they separated previously to his emigration, and had divided their property, he bringing only his share to the state.

Sometime after her arrival in Texas, she went to live with her husband again. She then seems to have renewed her harsh treatment, he conducting himself towards "her in an affectionate and kind manner. The details of her treatment need not be stated. She seems, however, to have deprived him of all his privileges as a husband, and in some degree of the comfort of his children’s society in so far as she was able; to have used violent and insulting language towards him, and to have conducted herself generally in such a manner as was calculated to render his life miserable. The reason assigned for her conduct was jealousy. The only ground of jealousy given by any witness, and that by one only, was that Dorn lived with another woman more than he did with his wife. When, where, and under what circumstances he lived with the woman, or who the woman was, does not appear. It is not shown that he lived with the woman in adultery, or that he committed any breach of conjugal duty in making his home with her. Everything this witness said might have been true, and yet the abandonment have been wilful on the part of Mrs. Dorn.

The law does not propose to encourage the separation of husband and wife by justifying it upon so flimsy a pretext. If it is brought about by jealousy, the jealousy itself must be produced by some reasonable cause, something certain and tangible, not by vague suspicions, and acts which, far from establishing guilt, are not inconsistent with innocence.

The abandonment by Mrs. Dorn having been wilful, or, in other words, without cause, and continuing till the death of her husband, she forfeited all claim to the homestead which he owned at the time of his death, and which she refused to share with him. Trawick v. Harris, 8 Tex., 312; Earle v. Earle, 9 Tex., 630; Sears v. Sears, 45 Tex., 557.

It follows that, upon the death of Bobert Dorn, the property in controversy was no longer protected by the homestead exemption, and became subject to his debts. As such, it was assets to be administered by his representatives, the intervenors, Bix & Storey; and if the only question between them and the defendants was .as to the homestead character of the property, it would have to be decided in favor of the intervenors. But to the claim of the latter the defendants pleaded peaceable and adverse possession for five years under a recorded deed, accompanied by cultivation, use and enjoyment of the property and the payment of taxes thereon, and the evidence sustained their plea. We see no reason why this should not bar the claim of the intervenors. The defendants had as much right to hold under their deed against the administrators as against any other person asserting title in opposition to their vendor, Mrs. Dorn; and the administrators were as much bound to sue them within the statutory time as any other possessor holding adversely to the title of the estate. Their only answer to this is, that they intervened within the five years in another suit against these defendants, in which it was sought to subject the property to the debt of a particular creditor, and in that suit set up the same cause against the defendants as in the present, and that said suit was still pending. We cannot see how the intervenors can protect themselves against limitation by any other suit except the one in which it is pleaded. The only exception would be where a suit had been commenced for the recovery of the land, and after its termination against the intervenors they had commenced a second suit under the former statutes of this state regulating the action of trespass to try title. But such is not the case here, as the former suit has never been determined, and the intervenors’ rights must be determined, so far as limitation is concerned, by this suit alone. As their claim was barred, the court did not err in finding against them.

This leaves the contest between the plaintiffs and defendants alone, and renders it a suit of the former against the latter for the recovery of an interest in the land, and a partition of the tract among the parties. Bo limitation can affect the plaintiffs, Mrs. Burleson and Mrs. Beed, as they have been continuously under coverture from a date previous to the adverse possession of the defendants.

It is clear that the land was the separate property of Bobert Dorn. He and his wife divided their property' when they separated in Mississippi, and none of that which he brought with him to Texas and invested in the land is shown to have been such as was set apart in the division to Mrs. Dorn. Besides, it was proved that the common law prevailed in Mississippi, except as modified by statute which secured to married women their separate property. Community property was unknown to Mississippi law. The land was bought by Dorn about six months after his arrival in Texas. The presumptions were therefore all against the supposition that the property brought by Dorn to Texas was other than his separate estate, and his residence here was too short to raise a presumption that any property of that character could have been acquired after he reached this state, previous to the purchase. Thompson v. Hathcock, decided at the present term. There were four heirs to the estate. Mrs. Duke, having bought out one of those heirs, was entitled, by this purchase and as heir to her father, to one-half the land. Mrs. Burleson and Mrs. Reed were together entitled to the other half. They should have recovered that amount, and the land should have been divided accordingly, had there been no equities to adjust between the parties.

But it seems that Harwood held a mortgage upon the six hundred and sixteen-acre tract of which the land in controversy formed a part. This mortgage and the debt it secured he transferred to Mrs. Duke, and it was held by her at the time the present suit was brought. She had relieved the land of all claim which the original mortgagee had to subject it to the debt, and was in possession of the land, holding this claim as a lien upon it. Her possession could not be disturbed by any one claiming under Dorn, the mortgagor, as did these plaintiffs, until the mortgage debt was satisfied. Hannay v. Thompson, 14 Tex., 142; Loving v. Milliken, 59 Tex., 423.

But it is claimed that the mortgage did not bind the land in controversy because it was at the date of the execution of that instrument the homestead of the mortgagor. Be it so; but upon the death of Dorn without any member of his family surviving in whom the homestead right could vest, the land was deprived of its homestead character, and the mortgage lien fastened on it immediately. This was the law at the time when the mortgage was executed, and also at the date of the mortgagor’s death, though such is not the rule under our present constitution. Lee v. Kingsbury, 13 Tex., 68; Stewart v. Mackey, 16 Tex., 56; Inge v. Cain, decided at present term.

Hence in the defense of this suit Mrs. Duke was entitled to set up her equities as holder of the mortgage, and the land could not be recovered from her by the plaintiffs claiming under Dorn till the mortgage debt was satisfied.

But this was not the only equity held by the defendant against the land in controversy. The debt upon which Say commenced bis suit as a creditor of Robert Dorn to subject the land to the payment of his claim had been paid off by these defendants. That debt appears to have been a charge upon the estate of Dorn, and if a just and legal claim, Duke and wife were entitled to be remunerated pro tanto for the amount paid by them in its satisfaction.

We think that no recovery can be allowed the plaintiffs until these two equities of the defendants are adjusted and satisfied. They are entitled to have refunded to them, by the plaintiffs, one-half of the amount paid in satisfaction of the two debts above set forth, together with interest thereon to the date of judgment.

But the defendants have had the use and occupation of the premises, and they must pay one-half of their rental value. This must be calculated from the commencement of their possession; for whilst they were tenants in common with the plaintiffs, they did not recognize this relation, and repudiated all claim of the plaintiffs in and to the premises. We think that in adjusting equities the court should take into consideration the value of the improvements made by the defendants, this value to be estimated as of the date of the commencement of this suit.

The judgment will be therefore reversed and remanded for an adjustment of these mutual demands of the parties, and a partition of the land in controversy, and for that purpose alone. Rone of the points settled in this opinion nor the facts on which they are based will be reopened, but the court below will go no farther than to inquire as to the amount paid by Duke or Mrs. Duke upon the Harwood mortgage and the Say debt, and charge one-half that amount to the plaintiffs. It will inquire as to the value of the rents of the land during the whole time it has been occupied by the defendants, and charge the latter with one-half the amount. It will ascertain the value of the improvements placed on the land by Duke and wife at the date this suit was begun, one-half this amount to be charged to the plaintiffs, except in the contingency hereafter mentioned. If will direct a recovery by the party in favor of whom the balance shall be found, against the party from whom it may be due. The court will then appoint commissioners to partition the land, and direct them to make such a division thereof between the plaintiffs and defendants as will compensate the party in favor of whom the moneyed judgment shall be rendered, out of the share which would otherwise be-set apart to the other, for the amount of his said recovery; or the court will make such other order as will secure to such party the money due him before the party from whom it is due can obtain his share of the land. If the land can be so partitioned as to set apart to the defendants the improvements they have placed upon it, this should be done, and the value of the improvements will not then be taken into consideration. The court will direct that the partition be so made as to include within the share allotted to Duke and wife the lands sold by them to their co-defendants, so that their possession may not be disturbed. The court will apportion the costs as is usual in partition cases, or as in its judgment may pertain to justice and equity.

We have not noticed the objections taken to Mrs. Burleson’s depositions because the facts proved by them were abundantly established by other testimony.

None of the other assignments of error made by either of the parties demand our attention. The judgment is reversed and remanded with instructions as before stated.

Eeveesed and remanded.

[Opinion delivered December 18, 1885.]