60 Tex. 271 | Tex. | 1883
The appellees brought this suit to recover of the appellants eighty acres of land alleged to have been the separate property of Mrs. Missouri A. King, deceased; they claiming to be her only surviving children, and the only heirs of herself, and of a deceased brother, who, during his life-time, had inherited a child’s share from her.
Mrs. Missouri A. King intermarried, early in 1857, with W. T. King, and of that marriage were born the appellees and their said deceased brother, and the tract of land in controversy was purchased during that marriage, but not paid for until after it was dissolved by the death of Mrs. Missouri King, which occurred in 1867. W. T. King married a second time, his last wife being Mrs. Mary Ann King, one of the appellants in this cause, and of this marriage four children were born, two of whom died in infancy, and the other two are also appellants herein.
W. T. King departed this life during the continuance of the marital relation with his second wife, and she subsequently intermarried with James King, who for that reason was joined with her as a defendant in the court below.
W. T. King, his second wife, and the children of both marriages occupied the land in controversy as part of their homestead from the date of his second marriage down to his death. Subsequently his widow and said children occupied it as a homestead, until within a short time before this suit was commenced, when the children of the first marriage having left the place, Mrs. King and her second husband and the children of her marriage with W. T. King continued in possession of the land, claiming it- as a homestead; and such was the condition of matters when this suit was brought.
The appellees claimed that the land was paid for with the separate means of Mrs. Missouri A. King, deceased, and that, upon-the death of their father, there was nothing to which a homestead right in the land could attach for the benefit of the widow and children of his second marriage, and appellees were entitled to the possession of the property. If their premise as to the manner in which the land was acquired "was correct, their conclusions legally and necessarily followed. Const: 1876, art. XVI, sec. 52; Gilliam v. Null, 58 Tex., 298; Pressley’s Heirs v. Robinson, 57 Tex., 453.
• On the part of the defense it was proved that King, before he made the last payment upon the land, sold some steers for $100 and took the money ostensibly for the purpose of paying Oanafax on the land, and that these steers belonged to King before his second marriage. It was also proved that he raised $40 more for the same purpose, which was not the separate money of his first wife.
These are about the most important facts bearing upon the purchase of the land and the manner in which it was paid for. Upon this proof the jury found that the entire purchase money of the land in controversy was paid with the separate means of Missouri King, and a decree was accordingly rendered that the appellees recover the whole tract claimed by them in the suit.
The assignments of error relied on here bring before us the question as to whether or not this evidence is sufficient to warrant the finding of the jury. Hot only was the burden of proof upon the plaintiffs below to trace the separate means of the wife into the purchase of the land, as we have stated, but the law requires that this shall be done by clear and satisfactory evidence. Love v. Robertson, 7 Tex., 6; Huston v. Curl, 8 Tex., 239; Schmeltz v. Garey et al., 49 Tex., 49; Mitchell v. Marr, 26 Tex., 329.
Perhaps there is no fact which, in the trial of civil causes, is required to be so satisfactorily proved as that which engrafts a parol trust upon the legal title. 1 Perry on Trusts, sec. 136, and authorities just cited.
Whilst it is not necessary that it should be established beyond a reasonable doubt, nothing must be left to conjecture, nor must presumptions be indulged which are not the usual and almost necessary deductions from the facts proved.
After a great length of time has elapsed, and parties have held possession of the land for years under the legal title without question, and the witnesses who might have established their right to such possession beyond all controversy are dead, they should not be readily disturbed by evidence within the knowledge of living witnesses which raises a presumption in favor of the trust, when, if deceased witnesses could be heard to speak, such presumption might be easily rebutted.
In the present case, it was clearly shown that Mrs. King owned a few cattle, and W. T. King a horse and yoke of oxen when they were married. That neither the horse nor the oxen entered into the
The extent of one’s money or other property, and especially the former, is not always known to his neighbors; and, because they are nob aware of it, the conclusion is not certain that he does not'possess it. But, admitting that the absence of any witness to show that the deceased, King, had other means, or used the proceeds of his wife’s cattle for one purpose and his own money to buy the land, and that the purchase of the Boggs tract with Missouri King’s separate property was sufficiently established, there is a clear lack of evidence to show that the interest of King in the Canafax land was wholly paid for with the separate means of his first wife. Of the consideration received by him for the land sold to Branley, the proof sufficiently shows that he invested about $375 in the Canafax tract, viz., $175, the value of a horse and wagon, and his one-half interest in Branley’s, presumably $200. There is not only a total lack of proof to show that the remaining $125 was paid with the purchase money of the Boggs land, but the evidence is persuasive that it was paid partly with money realized by King from the sale of beef steers, his separate property, or community property of his first marriage, and with money raised by him by collection and loan for this very purpose. If only $375 of the purchase money was paid with the separate property of Mrs. Missouri King, the appellants certainly had some interest in the land, as surviving wife and children of his second marriage, to which the homestead right would attach. That interest would bear the same ratio to the whole tract that their fathers interest in the money paid for it bore to the whole amount of the consideration paid, and to that extent at least the plaintiffs were not entitled to recover. Love v. Robertson, 7 Tex., 6; Claiborne v. Tanner, 18 Tex., 68; Battle v. John, 49 Tex., 202.
But the verdict of the jury gave the entire land to the appellees and judgment was rendered accordingly. We think that the verdict in part was wholly unsupported by evidence, as already shown, and
Reversed and remanded.
[Opinion delivered November 2, 1883.]