Wiggins v. Holmes , 39 S.W.2d 162 ( 1931 )

I regret my inability to agree with the opinion of my associates in this case.

Admittedly, the only property involved is the separate estate of Jacob Wiggins which he owned at the time he married Emma in 1883. The only claim appellants have to the property is necessarily contingent on the fact that when Jacob Wiggins died he did not leave any surviving children, and the burden of proof was on appellants to establish said fact. Under the law of descent and distribution, if Jacob Wiggins left no surviving children, his wife, Emma, inherited one-half of the real estate involved, and appellant Cicero Wiggins, his nephew, the remaining half. If Jacob Wiggins left any surviving child or children, Emma Wiggins, the surviving wife, would have inherited a life estate in a one-third interest therein with her right to occupy the premises as her homestead.

The record shows without dispute that Jacob Wiggins married Matilda Hamilton in December, 1868, and was divorced from her in May, 1878; that he married Frankie Durham in February, 1879, and was divorced from her in May, 1883; that he married Emma Patterson in December, 1883; and that he died in 1903, leaving Emma as his surviving wife. In 1905 Emma Wiggins married L. J. Holmes. In April, 1906, John Wiggins filed suit in the district court of McLennan county against Emma Wiggins Holmes and her husband, claiming that he was a son of Jacob Wiggins by a former marriage and by reason thereof was entitled to the property in controversy in this suit, subject to Emma's life estate in one-third thereof and her right to occupy same as a homestead. Judgment was rendered in said cause in favor of John Wiggins establishing the fact that he was Jacob Wiggins' son and awarding him all of said property subject to Emma's one-third life estate and her homestead rights. After said judgment became a finality, Emma Wig gins Holmes in 1906 purchased from John all of his interest in the property in controversy.

In June, 1906, Emma Wiggins Holmes purchased from Henry Wiggins, who claimed to be a son of Jacob Wiggins, all the interest he had in said property. About 1908 Emma Wiggins Holmes and her husband abandoned the property as their homestead and established their home in another portion of the city where she continued to live until her death in 1926. After she abandoned same, she continued to pay taxes on the property and collected the rents and made some improvements, the property having a fifty-foot frontage and running back 165 feet and had at all times from three to seven small negro rent houses on it.

Under the above undisputed facts, I think the trial court was authorized to instruct the jury to return a verdict for appellants on the question of limitation. The suit by John Wiggins in 1906 established the fact that he was a son of Jacob Wiggins, deceased. While that judgment is not necessarily binding upon Cicero Wiggins, it was of such a notorious character that he was charged with notice thereof, and the recovery by him of said property in said suit and the deed by him to Emma Holmes was sufficient to start the running of limitation in her favor. When John Wiggins recovered the property from Emma Holmes, it dissolved any possible cotenancy between her and Cicero Wiggins, and in order for her to hold possession of said property she was required to and did purchase same from the then record judgment holder, John Wiggins. She thereafter purchased the title claimed by Henry Wiggins as a son of Jacob Wiggins. In 1908 she abandoned the property as a homestead and for almost twenty years held possession thereof under said titles, collecting rents, paying taxes, and openly and notoriously claiming the entire property by virtue of said Judgment and deeds of conveyance. Cryer v. Andrews, 11 Tex. 170; Honea v. Arledge, 56 Tex. Civ. App. 296, 120 S.W. 508 (error ref.); Bush v. Bush (Tex.Civ.App.) 275 S.W. 1096; 7 R.C.L. 861.

In Cryer v. Andrews, supra, it appears that after the death of George Duty, certain of his brothers and sisters had his estate divided by the probate court without recognizing the interest of one sister, Mildred Cryer. Thereafter she brought suit for her portion. The Supreme Court, speaking through Chief Justice Hemphill, said: "Inasmuch as this partition was a notorious act of ouster, the other parties claiming the whole of the land, to the exclusion of the plaintiff, [Mildred Cryer] it would, on general principles, as against a citizen not laboring under a disability, operate as the commencement of prescription in favor of all who held adversely, under such decree; and possession under it, accompanied with the circumstances enumerated in the statute, would ripen into a bar against a joint owner thus disseized." And the court held that the title obtained by the brothers and sisters, who had the partition made without naming their sister, had ripened in their favor into a limitation title. The same doctrine was again expressed in Honea v. Arledge, supra. The authorities seem to be uniform that a suit in a court of competent jurisdiction between adverse claimants of land is such a notorious act of ouster that a judgment rendered is sufficient to begin the running of the statute of limitation against all parties and that possession under and by virtue of same by one of the parties to the suit will ripen into a title by limitation.

If it could be said that the ouster suit brought by John Wiggins against Emma Wiggins Holmes was not such a notorious act as to start the running of limitation, it was sufficient to put Cicero Wiggins on notice that any possible cotenancy between him and Emma Wiggins Holmes had been thereby dissolved. If said judgment did dissolve the cotenancy between Cicero Wiggins and Emma Wiggins Holmes, or if it was sufficient to put him on notice of said fact, then she was authorized to and had the right to purchase the outstanding title from John Wiggins the same as any other person, and the title so purchased inured to her individually. Bush v. Bush (Tex.Civ.App.) 275 S.W. 1096, and authorities there cited.

In 7 R.C.L. 861 it is stated: "After a cotenancy is actually dissolved, there is nothing in the law which forbids a former tenant in common from acquiring the entire property. He then has the same rights as any other person." The mere fact that Emma Wiggins Holmes did not wait until she was actually evicted from possession before she purchased the title that had been awarded John Wiggins, I think does not defeat her right to purchase said outstanding title. The record shows without controversy that Emma Holmes did in 1908 actually abandon the occupancy of the property as a residence and for almost twenty years has openly and notoriously collected the rents therefrom and paid the taxes thereon under and by virtue of the title she purchased from John and Henry Wiggins, and that Cicero Wiggins, although living in Waco and seeing Emma Holmes frequently and knowing that she was renting the property, made no claim to any part thereof.

I am further of the opinion that the judgment of the trial court was correct on the theory that it was shown without controversy that Henry Wiggins was the son of Jacob Wiggins and was living at the time Jacob Wiggins died. It is, of course, the recognized rule of evidence that pedigree and relationship and marriage may be proven by hearsay evidence. Article 3713, Revised Statutes, and rule of evidence No. 35 thereunder.

E. D. Russell testified that he began collecting toll on the suspension bridge in Waco in 1884 and kept that position for six years, and that he personally knew both John and Henry Wiggins and that Jacob Wiggins told him that he had two boys and that John and Henry were his boys and members of his family. Mr. Russell testified that on several occasions Jacob Wiggins told him that both John and Henry were his sons. The evidence shows without dispute that when this cause was tried John was dead and Henry Wiggins lived in Houston.

L. J. Holmes testified that both John and Henry Wiggins addressed Jacob Wiggins as "papa" and that Jacob Wiggins said they were his sons, and he further testified that John and Henry Wiggins lived with their father, Jacob Wiggins, and that Jacob Wiggins claimed that John and Henry were his lawful children.

Jackson Moseley testified that he personally knew John and Henry Wiggins and that he heard Jacob Wiggins say that they were his boys.

While there were some witnesses who testified that they heard Jacob Wiggins say that John was not his son, there was not a single witness who testified that they at any time heard Jacob Wiggins deny or even suggest that Henry was not his son. Neither was there a witness who testified that he ever heard Jacob Wiggins say he did not have any living children. Since family relationship can admittedly be established by hearsay, it occurs to me that the testimony of the witnesses Russell, Holmes, and Moseley is sufficient to establish as a matter of law that Henry was the son of Jacob Wiggins.

I am further of the opinion that there was no error in the action of the trial court in instructing the jury to return a verdict against appellants for the reason that, before appellants could recover, it was necessary for them to offer some evidence tending to show that Jacob Wiggins died without issue. Unquestionably, appellees had title by limitation if Jacob Wiggins did leave children, and it is further unquestionably true that if Jacob Wiggins left children, appellants were not in any event entitled to recover. It was therefore incumbent upon appellants to offer some proof tending to show that Jacob Wiggins did not leave any living children. There was not a single witness who testified that Jacob Wiggins did not leave children; neither was there any witness who testified that Jacob Wiggins at any time or under any condition told them or suggested to them that he did not have children. The record shows without dispute that he married first in 1868; that he had three wives and that he died in 1903. Before the trial court was authorized to submit the issue as to whether Jacob Wiggins died without leaving issue, the burden was on appellants and it was imperative that they offer evidence to support said issue. It is to me a strange doctrine to hold that the trial court was required to submit to the jury the issue as to whether Jacob Wiggins left any children when there was no evidence tending to show that he died without issue.

For the reasons given, I think the judgment of the trial court should be affirmed.