Christiansen v. Christiansen

• Decision Date: 12 March 1947
• Docket Number: No. 11562.,11562.
• Citation: 159 F.2d 366
• Parties: CHRISTIANSEN v. CHRISTIANSEN et al.
• Court: U.S. Court of Appeals — Fifth Circuit

159 F.2d 366 (1947)

CHRISTIANSEN v. CHRISTIANSEN et al.

No. 11562.

Circuit Court of Appeals, Fifth Circuit.

January 22, 1947.

Rehearing March 12, 1947.

James F. Gray and John N. Harris, Jr., both of Dallas, Texas, for appellant.

W. H. Reid, of Dallas, Texas, for appellees.

Before SIBLEY, WALLER, and LEE, Circuit Judges.

WALLER, Circuit Judge.

Alfred Christiansen was the son of Gilbert and Carrie Christiansen, a brother of Annie and Josie, a nephew of Chris Christiansen, Johanna Carter, and Alette Sullivan, and husband of the plaintiff, Margaret Christiansen.

Alette Sullivan, nee Alette Christiansen, died intestate in Dallas, Texas, on the 26th of June, 1933, owning real estate in said city, one-half of which, under the statutes of Texas, went to her husband, J. A. Sullivan, and the other one-half went to her brothers and sisters or to the heirs of such as were deceased. At the time of her death her brother, Chris Christiansen, and her sister, Johanna Carter, were alive, and each inherited a one-sixth interest in her real estate. Her brother, Gilbert Christiansen, died in 1903, in Dallas, Texas, leaving a wife, Carrie Christiansen, and two children, Alfred, and Josie, residing in Astoria, Oregon. One daughter, Annie, had died in 1896, and all of his heirs, except Alfred, had died prior to the death of Alette Sullivan, by virtue of which Alfred Christiansen became, and was, the sole heir of Gilbert Christiansen and entitled to one-sixth of her real estate which his father would have inherited had he lived until after her death.

Gilbert Christiansen and Carrie married in Wisconsin but lived in South Dakota a short while and then moved to Astoria, Oregon, where they and their three children lived until Annie came to Dallas, Texas, where she died in 1896. In 1901 Gilbert Christiansen left his wife, his son, Alfred, and daughter, Josie, in Astoria and came to Dallas where he died in 1903. Chris Christiansen, defendant in the present suit, lived with his brother, Gilbert, in Astoria from 1882 until 1892, when he came to Dallas. Chris Christiansen, having lived in the home with his brother, Gilbert, knew that the family lived in Oregon, and that Alfred was about fourteen or fifteen years old at the time that he (Chris) left Astoria, and came to Dallas. Neither Carrie, Alfred, nor Josie ever resided in Texas, and Gilbert lived there only two years — 1901 and 1902.

After the desertion of Carrie and her two children by Gilbert, the family moved from Astoria to Portland, Oregon, where Alfred married the plaintiff, Margaret Christiansen, on September 19, 1916. Alfred and his wife moved to Metzger, a suburb of Portland, in 1919, and lived together as husband and wife until Alfred's death, June 16, 1940. Upon his death, without issue, Margaret became the sole heir of Alfred Christiansen, and entitled to a one-sixth interest in the real estate of Alette Sullivan.

On November 15, 1933, Chris Christiansen and his sister, Johanna, filed suit for partition and accounting in the Dallas Division of the District Court of Texas against J. A. Sullivan, the surviving husband of Alette, and against Gilbert Christiansen, Carrie, Annie, Alfred, and Josie, and their unknown heirs, whose residences were all alleged to be unknown.

In their complaint it was, among other things, alleged: That the defendants, Gilbert, Carrie, Alfred, Josie, and Annie, so far as plaintiffs knew, were dead and had died intestate; that plaintiffs are "the only living heirs in the direct line of descendancy of the said deceased, Alette Sullivan, living at the present time, and that all other heirs other than the defendant, J. A. Sullivan, heretofore named herein, are deceased, and without heirs, or if with heirs, that such other defendants, together with their heirs, who are unknown, are presumed to be dead, by virtue of their absenting themselves for more than seven years successively prior to the filing of this suit."

Citation by publication was had but nowhere was the place of residence of any of the heirs of Gilbert Christiansen shown nor was any notice of pendency of the suit in anywise delivered to Alfred Christiansen, who was at that time living in Metzger and who was then the sole surviving heir of his father.

In partition suit Chris Christiansen testified that he knew Gilbert's family and that he lived with them in Astoria, but that he himself had left Astoria in 1892 and had not heard anything from them since his brother, Gilbert, came to Dallas in 1901. There was no evidence that Chris made any effort to locate them in Oregon.

Based upon Chris Christiansen's testimony and the allegation of the complaint, the Court adjudged that the heirs of Gilbert Christiansen had absented themselves from their home and residence for a period of over seven years prior to the filing of the suit and had not been heard from during that time by their family, relatives, or friends, and were presumed to be dead, and that Chris and Johanna were the sole living heirs of Gilbert Christiansen, Carrie Christiansen, Josie Christiansen, Alfred Christiansen, and Annie Christiansen, and as such are the owners of, and entitled to, all right, title, and interest of said defendants in the real estate described other than the one-half interest of the defendant, J. A. Sullivan. This decree was entered on the 10th of March, 1934, pursuant to which commissioners were appointed and their report approved by a final decree of the Court renderd on April 3, 1934. There was no partition of the lands between Chris and Johanna, but only between them and the defendant, J. A. Sullivan.

On the 9th of September, 1936, and the 18th of September, 1940, Johanna Carter conveyed her one-half interest in all but one parcel of the property to Chris Christiansen.

On August 31, 1945, Margaret Christiansen, the widow and sole heir of Alfred Christiansen, filed the present suit against Chris Christiansen and the heirs of Johanna Carter for the purpose of recovering the one-sixth interest in the lands of Alette Sullivan which her husband, Alfred Christiansen, had inherited. She alleged that Alfred Christiansen, her husband, was alive at the time of the filing of the partition suit; that she was his lawful wife and only heir; that he had never absented himself from his home and place of residence for any substantial length of time; that he had lived in Portland, Oregon, for twenty-four years and was living in Metzger, one of its suburbs, until the time of his death, June 16, 1940; and that the allegations made by the plaintiffs in the partition suit were false and fraudulent; that the plaintiff had not discovered the fraud until on or about May 1, 1945; and that under Article 5541 of Vernon's Civil Statutes, Ann., of the State of Texas, she was entitled to have one-sixth of the land, together with the rents and profits restored to her.

At some date after the rendition of the partition decree — which date is not clearly shown — Chris Christiansen went into possession of the lands and claimed same under the decree adversely against his co-tenant, Alfred Christiansen, and his heirs, and now asserts that he is protected by the statutes of limitations of the State of Texas.

There was no dispute in the facts. The defendant, Chris Christiansen, testified in the trial in the present case that he had lived in the home of Gilbert Christiansen and his family in Astoria, Oregon; that he knew they had three children; that before filing the partition suit he made no inquiry in Oregon to try to ascertain whether any of Gilbert Christiansen's family was living or dead; that neither Alfred Christiansen, nor any of his, or Gilbert Christiansen's surviving heirs, had ever lived in the State of Texas; that he did not know whether they had ever left their place of residence at any time; that the only inquiry he made was in South Dakota at a place where Alfred Christiansen and the other heirs of Gilbert Christiansen had never lived; but that he had had no knowledge or hearing from any of the family for thirty years, and had made no effort to find them other than to make some inquiries of relatives in South Dakota.

The Court below, in the pending case, found that the defendant had been guilty of fraud, stating: "Fraud is established as a matter of law where it appears that the next of kin of the absentee obtained the judgment pronouncing him dead when the undisputed fact shows that such next of kin knew that the absentee last lived in a particular place but made no search or inquiry there." 62 F.Supp. 341, 343. But the lower Court was of the opinion that in Texas neither fraud nor ignorance of the existence of the fraud would prevent the statute of limitations from running in the absence of a concealment of the fraud; that mere silence and inaction were insufficient; that the evidence did not show any affirmative act upon the part of Chris Christiansen which prevented the plaintiff from discovering the fraud; that the partition decree was of record and the records were open to the plaintiff; that in order to get around the statute of limitations it was incumbent upon the plaintiff to show the exercise of reasonable diligence to discover the fraud; and that even though an heir did not know of his inheritance, the statute of limitations would run against him unless there was an active and continuing fraud that prevented him from discovering the true facts. See D.C., 62 F.Supp. 341.

We are of the view that the Legislature, in enacting Article 5541¹ and Article 3292,² Vernon's Civil Statutes, Ann., of Texas, was undertaking to prevent the taking of property of a person on the presumption, that he was dead if, in truth, he was not, and that it enacted the statute recognizing the presumption arising from seven years' continuous absence from one's place of abode Art. 5541 only on the condition that if it later developed that the absentee was not dead the property should be restored to him. Art. 5541 says as much. Moreov...