Tanton v. Tanton, 209 S.W. 429

Tanton v. Tanton

209 S.W. 429

Tex. App.

1919

Check Treatment

HIGGINS, J.

Mary H. Tanton, appellee, sued her husband, Nathan W. Tanton, for a divorce, alleging that he had beеn guilty of excesses, cruel treatment, and outrages of such nature as to render their living together insuрportable; and for partition of an undivided one-half interest in a tract of land which she claimed as her separate property. The undivided one-half interest in this land was conveyed to Mrs. Tanton by Mr. Tanton while they were husband and wife. There had been a previous separation of the pаrties, prior to the separation out of which the present divorce suit originated. Upon the рrevious separation a reconciliation had been effected, and the deed by Tantоn to his wife was made and delivered at that time. Appellant vigorously contested the suit for divorcе, and by cross-action sought to have the deed mentioned set aside and canceled.

• Upon trial before a jury the case was submitted upon special issues, all of which were answered in Mrs. Tаnton’s favor. Judgment was rendered ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍for a divorce with recovery and partition of an undivided one-hаlf interest in said land. Partition .of the community estate was also ordered.

We shall not attempt to follow the specifications of error as they are presented in the brief. Under the view of the сase which we have, it is sufficient to indicate our holding upon the salient and controlling features of the case.

[1] 1. The record discloses that Mrs. Tan-ton, formerly Gavin, was married in Austin, Tex., ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍.on December 21, 1909, to one Charles Schaeffer. On November 17, 1910, she was *430 married to Mr. Tanton in El Paso, Tex. ■ There was no direct evidence offered to show that she had been divorced from Schaeffer prior to her mаrriage to Tanton. On the trial, appeílant requested the submission of instructions, which, in effect, were рeremptory instructions to find against Mrs. Tanton upon her right to divorce. These charges were requested upon the theory that she had not shown a valid marriage to Mr. Tanton because at the datе of her marriage she vas not divorced from Schaeffer. Since the record discloses that Mr. аnd Mrs. Tanton were of full age on November 17, 1910, and upon that date a marriage ceremony between them was performed; that for several years thereafter they lived together as husband and wifе, it would have been improper to have given a peremptory instruction based upon the аssumption that the marriage relation between Mrs. Tanton and Schaeffer had not been dissolved аt the time she married Tan-ton. In the absence of any direct evidence upon the subject, the facts stated were sufficient prima facie to raise a presumption of fact that prior to November 17, 1910, the marriage relation between Mrs. Tanton and Schaeffer had been dissolved. Nixon v. Wichita L. & Co., 84 Tex. 408, 19 S. W. 560; Cuneo v. De Cuneo, 24 Tex. Civ. App. 436, 59 S. W. 284; Kinney v. Telephone Co., 201 S. W. 1180; Wingo v. Rudder, 120 S. W. 1073; Harvey v. Carroll, 72 Tex. 63, 10 S. W. 334; Hammond v. Hammond, 43 Tex. Civ. App. 284, 94 S. W. 1067.

[2, 3] 2. Those assignments are sustained which complain of the sufficiency of the evidence to sustаin the decree of divorce. To detail the incidents which resulted in the separation of the рarties and institution of this suit would serve no useful purpose. Since its publication is not required to illustrate the principles upon which this holding is based, and in view of the fact that much of the evidence is of an indеcent nature, we refrain from quoting it. It is sufficient to say that the evidence abundantly and conclusively . shоws such recrimination on the part of Mrs. Tanton' as to require reversal of the judgment rendered in her ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍fаvor. The undisputed testimony of her neighbors and friends who visited the home of the parties show accusаtions made by her against her husband and conduct on her part towards him which must be considered in determining hеr right to a divorce arising out of the matters complained of by her. The marriage relation is a sаcred matter. It is not to be lightly assumed nor lightly dissolved. It imposes mutual obligations of kindness and forbearance to each other. The view of our courts upon this subject have been repeatedly stаted. Among the many cases where recrimination has been held to bar suit for divorce, see Hale v. Hale, 47 Tex. 342, 26 Am. Rep. 294; Jones v. Jones, 60 Tex. 451; Bohan v. Bohan, 56 S. W. 959. As to the duty and authority of this court to set aside the decree and reverse on the evidence, see article 4633, R. S.; . De Fierros v. Fierros, 154 S. W. 1007; Moore v. Moore, 22 Tex. 240; Paulson v. Paulson, 21 S. W. 778; Dickinson v. Dickinson, 138 S. W. 205; Lohmuller v. Lohmuller, 135 S. W. 751; Grisham v. Grisham, 185 S. W. 959.

[4] 3. The present separation took place in 1917. There had been a previous separation and reconciliation. Appellant contends that his deed to Mrs. Tanton was invalid, and should be set aside ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍because it was executed upon consideratiоn of Mrs. Tanton resuming the marital relation. Our views upon the validity of a deed executed upon such сonsideration are stated in McKay v. McKay, 189 S. W. 520. Under the twenty-second and twenty-third assignments, appellаnt complains of the refusal to submit to the jury the issues of fact upon his contention in this respect. Uрon retrial, if raised by the pleading and evidence, a properly framed charge upon this phase of the ease should be given.

Reversed and remanded.