Creamer v. Briscoe

• Decision Date: 15 April 1908
• Citation: 109 S.W. 911
• Parties: CREAMER et al. v. BRISCOE et al.
• Court: Texas Supreme Court

109 S.W. 911

CREAMER et al. v. BRISCOE et al.

Supreme Court of Texas.

April 15, 1908.

Error to Court of Civil Appeals of Second Supreme Judicial District.

Action by J. D. Briscoe and others against Josiah Creamer and others. From a judgment of the Court of Civil Appeals (107 S. W. 635), modifying and affirming a judgment of the district court for plaintiffs, defendants bring error. Reversed and rendered.

Geo. E. Smith and Snodgrass & Dibrell, for plaintiffs in error. Goodson & Goodson, for defendants in error.

WILLIAMS, J.

This action was brought by defendants in error, as heirs of Mrs. Sarah Creamer, the second wife of Josiah Creamer, to establish their title to interests in the land in controversy alleged by them to have been the community property of Josiah Creamer and their ancestress. The plaintiffs in error, the defendants below, claim the whole of the property as belonging to the community estate of Josiah Creamer and his first wife. Creamer and his first wife settled upon the land in 1871, in order to acquire it as a homestead donation under the laws then in force, and did everything necessary to that end, except to complete the three years' occupancy. After they had occupied the land for more than a year, Mrs. Creamer died, and Josiah Creamer, thereafter and during the three years, married his second wife, and with her completed the occupancy and obtained a patent. We are of the opinion that the case of Mills v. Brown, 69 Tex. 246, 6 S. W. 612, sustains the contention of plaintiffs in error that the facts stated show the land to belong to the community estate of the first marriage. In that case a widow, who was the head of a family, made application for a survey of a piece of public land for a homestead, and paid the surveyor's fees. Without having done anything more, she married, and she and her husband settled and resided together upon the land for less than three years, when she died. Thereafter the husband completed the necessary occupancy, and a patent issued to her heirs. The question was whether the land was community property of the two, or the separate property of the wife. The court held both that it was not her separate property and that it was community property, and the land was divided equally between the claimants under the two.

If the contention of the defendants in error were sound, the land involved in that case would have been the separate property of the husband; such contention being that homesteads of this character are only acquired, in the sense of the statute defining separate and community property, after the occupancy has been completed. Mills v. Brown fully recognizes as applicable to such cases the principle, more fully discussed afterwards in the case of Welder v. Lambert, 91 Tex. 510, 44 S. W. 281, that the character of title to property as separate or community depends upon the existence or nonexistence of the marriage at the time of the incipiency of the right in virtue of which the title is finally extended, and that the title, when extended, relates back to that time. And Mills v. Brown expressly holds that the right to such homestead donations has its incipiency in the actual settlement upon the land. It is true that the claimant under the husband in Mills v. Brown claimed only half of the land, on the ground that the whole was the common property of the husband and wife, and did not assert that it became the separate property of the husband by his completion of the occupancy after his wife's death. He was merely resisting the contention that the land belonged to the wife in her separate right, because of the steps taken by her before the marriage and settlement. Both parties were contending for the principle above stated, and differing upon the question as to what step or steps constituted the inception of the right which merged in and gave character to the title; and it was this question which the court decided, holding in no uncertain language, and upon reasoning with which we are entirely satisfied, that the initial step in which the right originated was the settlement.

The decisions by which the Court of Civil Appeals felt constrained to hold in this case that the land in question belonged to the community estate of the second marriage are Buford v. Bostick, 58 Tex. 63, Roberts v. Trout, 13 Tex. Civ. App. 70, 35 S. W. 323, Votaw v. Pettigrew, 15 Tex. Civ. App. 87, 38 S. W. 215, and Richard v. Moore, 110 La. 435, 34 South. 593. In Buford v. Bostick the question was one of three years' limitation, depending upon the further question whether or not the claim to a homestead donation of land, which was not vacant, but was owned by the plaintiff in that action, constituted color of title before the settlers had held for three years. The decision was based mainly upon the language of the statute...