Bull v. Bull

• Decision Date: 24 May 1902
• Citation: 68 S.W. 727
• Parties: BULL v. BULL et al.
• Court: Texas Court of Appeals

68 S.W. 727

BULL v. BULL et al.

Court of Civil Appeals of Texas.

May 24, 1902.

Appeal from district court, Erath county; W. J. Oxford, Judge.

Trespass to try title by R. V. Bull and others against R. Tilda Bull. Judgment for plaintiffs, and defendant appeals. Reversed.

H. H. Cooper and Parker, Carlton & Carter, for appellant. Eli Oxford, for appellees.

CONNER, C. J.

This is a suit by the surviving children and heirs of John W. Bull, who died on the 11th day of February, 1898, to recover the title and possession of 160 acres of land of which appellant was in possession, claiming the homestead right therein as the surviving wife of said John W. Bull. In addition to the usual averments of a petition in trespass to try title, appellees specially alleged, among other things: "That on the 18th day of December, 1886, the said Jno. W. Bull entered into a pretended marriage with the defendant, R. Tilda Bull; that at the time of said pretended marriage with defendant she was then lawfully married to one Long, who was then living, and that defendant had never been divorced from said Long at the time she entered into said pretended marriage with the said Jno. W. Bull; that the defendant knew at the time she entered into said pretended marriage with the said Jno. W. Bull that she was not divorced from said Long, and that she knew where the said Long was at that time; that said pretended marriage and alliance was illegal, and was null and void, and is of no force and effect; that after said pretended marriage the said Jno. W. Bull moved the defendant upon the premises above described, and there cohabited with her under circumstances which constituted bigamy on the part of the defendant up to the time of the death of the said Jno. W. Bull; that, by reason of said illicit cohabitation of the defendant with the said Jno. W. Bull, she has violated the criminal laws of this state, and has committed a felony known as the offense of bigamy, and, but for the statute of limitation, she would be liable to prosecution and conviction for said crime above named. The defendant by reason of said cohabitation with the said Jno. W. Bull has acquired no homestead rights under the laws of this state." The trial was before the court without a jury, and the judgment in appellees' favor is here assailed on the ground that the evidence is insufficient to sustain it on the issue presented by the special plea above quoted. The evidence on the issue indicated consists of an ex parte deposition of appellant taken in behalf of appellees March 31, 1900, which is as follows: "My name is R. Tilda Bull. I was 72 years old the 12th day of January, 1900. I now reside on my homestead on Pony creek, in Erath county, Texas. I have been here 13 years on the 18th day of December, 1899. I have been married three times. My first husband's name was Berry Hill. He is dead. He died in Tennessee, on Duck creek, during the Civil War. I was married to a man by the name of Long. He was my second husband. He is dead. I do not know when he died, but it seems to me that he died about four years ago. I was not present at his death or burial, or either of them. I do not know where he was buried, if he is dead. I cannot give the names of some of the parties who attended his death and burial, for I was here in Texas, and he was in Alabama. I was married to Long in Franklin county, Alabama. The marriage license issued from Franklin county, Alabama. A Baptist preacher by the name of Finey performed the ceremony. I was only divorced by the laws of Alabama, which say seven years would divorce couples. No suits were brought by the court for a divorce, that I know of. If Long sued for a divorce, I don't know where it was. No citation or process of the court was ever served on me. I have no copy of citation or decree of divorce from him. I was separated from Long, but do not know that there was ever any divorce; nor have I sued for a divorce, that I know of. I don't know where he is now living. Long was at my house one time after my marriage to John W. Bull. That was on the place that I now live. He was never in the house. He just came to the gate. It was five or six years past. I do not remember the exact date. I never knew what he came here for, as I did not speak to him. John Underwood was here, and I think he talked to him. I was married to John W. Bull about 13 years ago, in Hood county. I know A. P. Payne, who now lives at Breckenridge, Stephens county, Texas. I have known him ever since we were children. His two sons married my two daughters. They were also the daughters of Long. Their names were Annie and Fannie."

It may be assumed that this evidence, unexplained, supports appellees' contention that appellant was the lawful wife of Long at the date of her marriage to Bull, in 1886, and that therefore the latter marriage was invalid; but, if so, it does not necessarily follow that she was not the lawful wife of John W. Bull at the date of his death, on February 11, 1898. If at the latter date she was Bull's lawful wife, her possessory homestead right to the land in controversy must be conceded, notwithstanding the invalidity of the original marriage to Bull, as the evidence on this point leaves no room for doubt; so that the vital question for our determination is whether the evidence cited is sufficient to exclude the presumption that we think must be entertained in favor of appellant's lawful status at the date of Bull's death. We have concluded that it is not, and that the judgment must be reversed. In Carroll v. Carroll, 20 Tex. 732, the death of Jabez Saunders after seven years' separation was presumed, in favor of the legality of the subsequent marriage of his wife, Susan, to N. H. Carroll. A like presumption was indulged, where there was no evidence of the existence of the first wife for four years prior to the second marriage, in the case of Yates v. Houston, 3 Tex. 433; it being held that the presumption in favor of the continuance of human life should not outweigh the presumption of the innocence of cohabitation. A like presumption was indulged in in the case of Hull v. Rawls, 27 Miss. 471. The court in that case say: "The fact that the...