Cockrell v. Curtis

• Decision Date: 22 January 1892
• Citation: 18 S.W. 436
• Parties: COCKRELL v. CURTIS.
• Court: Texas Supreme Court

18 S.W. 436

COCKRELL v. CURTIS.

Supreme Court of Texas.

January 22, 1892.

Error from district court, Dallas county.

Action by L. J. Cockrell against J. H. Curtis to recover possession of land. Plaintiff brings error from a judgment for defendant. Reversed.

W. L. McDonald, for plaintiff in error. Coombes & Gano, for defendant in error.

HENRY, J.

This suit was brought by the plaintiff in error for the possession of a tract of land in Dallas county containing 145 acres, alleged to be the separate property of plaintiff's deceased husband and her homestead. The plaintiff claimed the whole tract as a homestead, and an undivided interest of one-third as heir of her husband. The defendant pleaded the statute of limitations of three years, and also that he held possession of the land for children of the deceased husband of plaintiff by a former marriage, and that the plaintiff did, several months before the death of her husband, without cause and contrary to his will, permanently abandon and live apart from him, and that she never afterwards discharged her marital duties to him. The court sustained an exception filed by plaintiff to this plea of abandonment. The cause was tried by the court without a jury, and the judge filed the following conclusions of fact: "This suit was instituted on the 6th day of May, 1889. The defendant was then in actual, peaceable, and adverse possession of the land in controversy, holding the same for himself and the other children of Wesley Cockrell, deceased, as heirs of Wesley Cockrell, and had so held said land for more than three years prior to the institution of this suit, and during all of said time plaintiff had actual notice of said adverse possession." The conclusion of law was that "plaintiff's action was barred by the statute of limitation of three years." Judgment was accordingly entered for the defendant. As Wesley Cockrell died intestate, his surviving wife (the plaintiff) inherited a life-interest of one-third in his estate. The defendant neither had title, nor color of title, to that interest, and the statute of limitations of three years has no application whatever to the case. This requires the reversal of the judgment upon the plaintiff's appeal. The defendant in error assigns error upon the judgment sustaining plaintiff's exception to his plea of abandonment. We think that the court erred in sustaining the exception. From the record before us, it appears that the plaintiff is entitled to the possession...