41 S.W. 533 | Tex. App. | 1897
The following conclusions of fact were filed by the trial judge: "That about the year 1865 Thomas Chapman and Johanna Chapman were married without license, and that they lived together as man and wife until about the year 1873 and were never divorced. That about that time they separated and have never since lived together. That on May 25, 1878, Thomas Chapman married Emma Chapman by license which was executed by a justice of the peace with all the forms of law. That in 1866 or 1867 Emma was married to one Wade in Victoria County, without license, and that no record of said marriage exists in Victoria County, Texas. That Emma and said Wade were never divorced. That at the time she married Thomas Chapman he told her, Emma, that he was a single man, that he had so assured her, and that she married him; that there is no recorded evidence of the marriage of Tom and Johanna in Victoria County, Texas. That Johanna, from about the year 1880, lived in the neighborhood of Tom and Emma Chapman, asserted marital rights with him, but recognized Emma Chapman as his wife. That from the date of Emma's marriage with Tom until his death in 1894 he and Emma lived together as man and wife. That after said marriage, and while they, Tom and Emma, were living together with Will and Palmer, the sons of Tom and Johanna, they, Tom and Emma, acquired a homestead donation of 160 acres of land granted by the State to Thomas Chapman on December 17, 1889. That this is the land involved in this suit. That this land was so acquired by reason of the fact that at that time Emma was living with Tom as his wife.
"That he acquired it as a married man, and that she and the two sons of Johanna and Tom thus contributed to the acquisition of said real estate by their joint labors. That while they were so living together they acquired by the joint efforts of Tom, Emma, and the two sons all the personal property involved in this suit, except one rifle and one harrow which belonged to Will Chapman, one mule which belonged to *384 Johanna Chapman, and one cow which belongs to Emma individually. That Emma contributed her labor and services with that of Will and Palmer to the acquisition of this personal property and of the real estate. That Tom and Emma had lived together from the date of their marriage until his death. That Emma lived in the same neighborhood as Tom, and Johanna within two miles. That she knew prior to her marriage with Tom that Tom and Johanna were living together prior to her (Emma's) marriage with Tom. That after the grant of the land to Tom, Johanna lived with her son Will on the land in a house erected on said land, and so continued to reside until the death of Tom, and that she still resides on the land with her son, but that while she lived on said land she, Johanna, never lived or cohabited with Tom, and that at the date of the application for this donation, Tom and Emma had been living together for some eight years."
In addition to the above conclusions, which in all material things were sustained by evidence, except as hereafter stated, it appeared from undisputed evidence that Ed Wade was living when Tom and Emma were married; also that about a year after Tom and Emma moved to the land in question, Johanna came and lived upon the land and remained there until Tom died. The conclusion of the trial judge, that the land was acquired by reason of the fact that Emma was living with Tom as his wife, is not correct or warranted in the sense that the donation was granted with reference to her as the wife.
Opinion. — A ceremony of marriage having been performed between Ed Wade and Emma in 1865, followed by their living together as man and wife for a number of years, it constituted a valid common law marriage between them; and so were Tom and Johanna man and wife for like reasons. Chapman v. Chapman, 11 Texas Civ. App. 392[
Emma was therefore the wife of Ed Wade when in 1878 she married Chapman, it being shown that Wade was alive and they had not been divorced. The question then is, could she under these conditions, Chapman having a wife living, claim property as Chapman's wife. It is clear she could not at common law, where, if either party contracting marriage has a husband or wife living, the marriage is void, and no marital rights can be founded on the relation.
We have early decisions in this State in which a woman sustaining the relation of wife, in ignorance of the fact that the man had a wife living, was held entitled to full community rights in the property acquired during such relation. Smith v. Lee,
Since 1840 the common law has been in force in this State, and it may be, as has been stated in some of our decisions, that its *385
principles should now govern questions of this kind, but from the view we take of the case it is not necessary to so decide. Even the rule of the Spanish law on the subject would preclude Emma from asserting a claim to property as wife of Chapman. By such rule, where the woman was ignorant that the man had a wife living, she was not only innocent of crime, but had all the rights, incidents, and privileges pertaining to lawful marriage so long as this ignorance continued. Lee v. Smith,
The homestead donation was granted by the State to Chapman as the head of a family. It was not granted with particular reference to Emma as his wife. He being the head of a family without her, his settlement or residence thereon for three years entitled him to it, if she had not been there at all. As a matter of fact, the wife Johanna lived upon the land during the greater part of the necessary period of occupation. Appellee had no marital rights by virtue of her relation with Chapman, as against the real wife, and the homestead donation vested in his wife and children at his death.
We therefore conclude that the District Court erred in recognizing Emma's right to half of the land; it should all have been adjudged to plaintiffs. But we believe there was no error in the disposition made of the personalty. As an individual or partner, Emma seems to have contributed *386 to the acquisition of this property, and is entitled to a share thereof. Morgan v. Morgan, 1 Texas Civ. App., and cases cited. Succession of Llula (La.), 10 So. Rep., 406. Chapman contributed his own labor and that of his sons' and Johanna's also. Without any guide in the evidence to show how much he contributed and how much Emma contributed in acquiring this property, the presumption would be that each was entitled to one-half.
The judgment will be reformed so as to award the land to plaintiffs, and the cause will be remanded as to the personalty and to effect partition thereof.
Reversed and remanded.
Writ of error refused.
[NOTE BY REPORTER. — In Chapman v. Chapman, 11 Texas Civil Appeals, 392, which was a contest between Emma and Johanna over the right of administration upon the estate of Thomas Chapman, it was decided by the Court of Civil Appeals for the First District that the marriage between Thomas and Emma was void, and that the right of administration was with Johanna as the lawful wife.]