64 Tex. 705 | Tex. | 1885
. We think there was enough in the evidence to justify the court below in finding that Mrs. Dorn wilfully
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.
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
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.
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
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.]