No. 3610. | Tex. App. | Mar 14, 1929
Appellants present the two points in view as constituting distinct grounds of error in rendering Judgment in favor of appellees, that (1) the evidence establishes that lot 1 in block 21 purchased in 1870, as well as the lot on North Main street exchanged therefor, was the separate property of Eliza Anderson; and (2) the appellees' cause of action was barred by the statute of limitation of 10 years.
It is definitely shown that Archie and Eliza Anderson were living together as husband and wife at the time of and before the deed of April 11, 1870. Such deed taken in the name of the wife during the marriage relation was presumptively community property, the face of the deed not declaring otherwise. In view of the circumstances, the trial court was justified in finding that the husband did not intend the title should vest separately in the wife; and the special verdict of the jury determines that the consideration for the lot was paid from wages and earnings of the wife during the marriage relation and the actual living together as husband and wife. Such finding of the jury may fairly be construed, as the trial court was authorized to interpret it, as relating to the time before Archie Anderson left or was forced to leave Paris in the year 1871. There is evidence to the effect that the deed was not made until the lot was paid for, and it was substantially proven that Archie Anderson did not leave Paris before April 11, 1870, the date of the deed. It is well settled that property acquired by deed after marriage and paid for out of the earnings of either the husband or the wife is community property. The beneficial interests of husband and wife in community property are equal, whether the deed be in the name of the husband or the wife. Patty v. Middleton,
As to the second point as to limitation, the court did not err in holding that the cause of action was not barred by limitation. The circumstances show that there was no adverse claim or repudiation of the trust by Eliza Anderson during her lifetime. Andrews v. Smithwick,
Fannie Barnes gave evidence, as conducive to presumed death of her father, Archie Anderson, that upon inquiry as to her father through letter to the minister of the Methodist Church at Sweet Home, Ark., she was informed by such minister that her father was dead. Her father's last fixed abode was Sweet Home, Ark. The appellants objected to the evidence, upon the ground "that the same was hearsay." The evidence was not admissible to prove the specific fact of death, which must be proved by the sworn evidence of one who knew the fact. The evidence, though, was admissible as a circumstance to be considered along with the other circumstances upon which to found the presumption of death. Such circumstances are not objectionable as "hearsay evidence." Primm v. Stewart,
"My father left (Paris) when I was a small child. It is correct that he just disappeared, and we did not know what became of him, and I never saw him any more. I do know by general reputation that he left the state of Texas and went to Sweet Home, Arkansas. * * * When I heard he was dead I wrote her (witness' mother) about it. I was not here in Paris at the time. I was down near Houston. I wrote her about his death when I heard it about March (1900). * * * I was not in Sweet Home when he died; but I know he is dead, because I wrote to the minister of our church. I did that in 1900. I decided I would go and see him (her father). That is how I happened to write that letter. I never had been to see him, but he used to write to Mamma, and we knew he was in Sweet Home, Arkansas. When I decided to go and see him I found out he was dead. That is all I know about it, what somebody told me. When I testify he died in March, 1900, I testify to what some one wrote me; that is all I know about it."
The fact that "he used to write to Mamma" from "Sweet Home, Arkansas," would go to show that the whereabouts of Archie Anderson was known, and that such place was his fixed abode. It does not appear when he last wrote to his wife, but it does appear that information came of his death at Sweet Home from a person who would naturally have heard of it. After a long interval has passed he has not written to his wife or family or been heard of by any of the family. There is no circumstance tending to show that he has left his former residence of Sweet Home. Archie Anderson was a barber by trade; and Sweet Home, a small town, appeared as his fixed abode for some period of time. Upon inquiry made of the minister, who resided in Sweet Home, he stated to Fannie Barnes, the daughter, that Archie Anderson was dead. This inquiry, coupled with the fact that no more letters were written to the wife, and the long interval that has passed without any intelligence from him, would authorize a presumption of his death. The exact date of death may not be indulged, but the fact that he is dead may be indulged. The trial court was authorized to so find.
Appellants made objections to certain evidence, and have assigned error in respect thereto. The appellees' objection to consideration of the bills of exception must be sustained, since such bills of exception do not show the ground of objection or exclusion of the evidence. Drane v. Humble Oil Refining Co. (Tex.Civ.App.)
We do not think the other assignments afford grounds for a reversal.
The Judgment is affirmed. *141