Coleman v. Vollmer

• Decision Date: 22 May 1895
• Parties: COLEMAN v. VOLLMER.
• Court: Texas Court of Appeals

31 S.W. 413

COLEMAN v. VOLLMER.

Court of Civil Appeals of Texas.

May 22, 1895.

Appeal from district court, Bexar county; W. W. King, Judge.

Trespass to try title by Jack Coleman against John Vollmer. There was a judgment for defendant, and plaintiff appeals. Reversed.

Ed. Halton, for appellant. Powell & Altgelt, for appellee.

FLY, J.

This is an action of trespass to try title, brought by appellant. It was alleged that the property sued for was the community estate and homestead of appellant and his wife, Henrietta, who died in September, 1894, leaving no children or other heirs; that prior to her death, and while she was insane, she had been induced to execute deeds to the property, but that appellant had not joined her in executing the deeds; and that appellee was claiming the property through these deeds. It was also alleged that a deed to the property had been by fraud obtained from appellant. The petition also alleged "that plaintiff and one Henrietta Coleman, who is now dead, commenced living together as husband and wife in or about the year 1863; that plaintiff and his said wife were prior to the 19th day of June, 1865, slaves, and, under the laws of bondage, were prohibited from a valid marriage contract, being negro slaves; that since the year of 1863 plaintiff and said Henrietta continued uninterruptedly to live together as husband and wife, and to so hold themselves out to the world, up to and until the day of her death, in the month of September, 1894." The petition was excepted to because the allegation of marriage was vague and indefinite, and did not show that appellant and Henrietta, while slaves, entered into the marital relation, and continued to live in the same relation until August 15, 1870, and because the act of August 15, 1870, 1870, only had the effect of legitimizing the children of slaves, and did not have the effect of rendering the cohabitation of the parties a valid marriage, and that said act is void and in conflict with provision 1, § 10, art. 1, Const. U. S. The exceptions were sustained, and judgment was rendered in favor of appellee. There is but one assignment of error, which brings up for review the action of the trial court on the exceptions.

The allegation as to the slave marriage and the uninterrupted living together of appellant and Henrietta as man and wife from the date of the slave marriage, in 1863, until her death, in September, 1894 (a period of 31 years), is clear and explicit. The great weight of authority is in favor of the proposition that, in the absence of any positive statute declaring that all marriages not celebrated in the manner therein prescribed shall be void, any marriage regularly made, according to the...