Hill v. Fairfax

38 Tex. 220 | Tex. | 1873

Walker, J.

The facts in this case appear to be about these. Both the plaintiff and defendant in the court below were negro slaves until the date of general emancipation, and belonged to Chas. Shearn.

Sometime in the year 1865 they commenced living together as man and wife, holding themselves out as such, and being so known and recognized among their friends. They continued to live in this state until the month of December, 1869. In the latter part of the month of December the appellee abandoned the appellant and married another woman.

The property in controversy appears to have been acquired during the time the parties lived together as man and wife. The appellee took the title to both the lots in his own name. They improved the lots and lived upon them until about the time of the abandonment, and it does not appear to have been the intention of the appellee to deprive the appellant of the use of the property, even when he abandoned her.

We think the evidence shows that the appellee would be entitled to an equitable division of the property, if the law established no relation between the parties other than that which exists among strangers, as it is pretty clearly established that at least the second lot purchased was purchased and improved with the joint earnings and means of both the parties ; but if the facts shall be found to bring this case within the provision of the twenty-seventh section of the twelfth article of the Constitution, then the appellee will be entitled to the same interest in the property that other married women take in the property acquired by themselves and husbands during coverture, under the laws of this State. We think the charge of the court is erroneous, and does not fairly state the law of the case. What a jury would understand by an actual marriage between the parties, without the proper explanation, is not what the Constitution in the clause referred to contemplates. It was-no doubt intended by the framers of that law to confer marital rights, and legitimatize the offspring of persons who had lived together upon the terms and under the conditions described in the section referred to. The interpretation which this court has placed upon the twenty-seventh section of the twelfth article of the Constitution was not known to his honor the District Judge before whom this, case was tried, at the time it was tried, else it would have relieved him from' any embarrassment growing out of this novel feature of our fundamental law. (Clark’s Heirs v. Honey, 37 Texas, 686.)

Actual marriage, as heretofore understood, is not necessary to entitle a woman to the rights of a wife, whose case falls within the provision of our Constitution on this subject.

The judgment of the District Court is reversed and the cause remanded.

Reversed and remanded.