Abrahams v. Vollbaum

• Decision Date: 02 February 1881
• Docket Number: Case No. 1050.
• Citation: 54 Tex. 226
• Parties: J. L. ABRAHAMS v. L. G. VOLLBAUM.
• Court: Texas Supreme Court

54 Tex. 226

J. L. ABRAHAMS

v.L. G. VOLLBAUM.

Case No. 1050.

Supreme Court of Texas.

Feb. 2, 1881.

APPEAL from Brazoria. Tried below before the Hon. Wm. H. Burkhart.

E. J. Wilson and A. S. Lathrop, for appellant.

Wm. Fort Smith and Munson & Shepard, for appellee.

GOULD, ASSOCIATE JUSTICE.

This suit was instituted December 26, 1877, by L. G. Vollbaum, for himself, and as next friend for a minor brother and sister, Charles and Dinah, also as next friend for his mother, Dinah Vollbaum, Sr., alleged to be non compos mentis, to enjoin defendant, Abrahams, from proceeding to have sold, under a certain deed of trust, an undivided half of a certain five hundred acre tract of land, alleged to include the homestead of the plaintiffs. As developed in the pleading and evidence, the facts are: That in October, 1872, A. W. Vollbaum died, leaving his wife, Dinah, and his children, L. G., Charles, Dinah and Wm. H., occupying what is known as the Worroll place, in which he owned only an estate for the life of one Collins. Sometime in 1872, A. W. Vollbaum had purchased of defendant, Abrahams, a tract of five hundred acres, known as the Champin Priestly place, adjoining the Worroll place, paid part of the purchase money, commenced to improve and cultivate it, and after his death it was possessed and cultivated by his family. Collins died and the life estate terminated in 1876. At some time not fixed by the evidence, not even as to whether it was before or after Collins' death, the family removed to the new purchase. Appellant denies that this tract was ever designated as plaintiff's homestead, or that it ever became such. There is evidence by one witness outside of the family and by one member of the family, that A. W. Vollbaum told them he purchased the place for a homestead. The evidence, as to improvements made on the place, other than that it was cultivated, and as to the commencement of residence thereon by plaintiffs or any of them, is indefinite and obscure. Abrahams testified that he never heard of its being intended or claimed as a homestead. After the death of A. W. Vollbaum his widow and family, without administration, remained in possession of the estate, which was all community property, and had the crop of 1872 gathered and marketed, and out of the proceeds paid to Abrahams $1,650, the balance of the purchase money of the place bought of him. Sometime in the year 1873, C. C. Cox, claiming to be a creditor of the estate (the amount of his claim or of the indebtedness of the estate does not appear), applied for and received letters of administration, and shortly thereafter brought suit against Dinah Vollbaum, Sr., alleging the conversion by her of the entire property of the estate, including the crop of 1872, and her refusal to deliver the same to him or to recognize him as administrator in any way, seeking recovery of the property and damages. There was a judgment by default and a writ of inquiry, resulting in judgment for the administrator for one-half the community lands, and for $2,705 damages. Under that judgment the administrator had the undivided half of the Champin Priestly five hundred-acre tract levied on and sold as the property of Dinah Vollbaum, Sr., and the same was purchased by Lathrop, who was the attorney for administrator, for $155,...