Creamer v. Briscoe

• Decision Date: 04 January 1908
• Citation: 107 S.W. 635
• Parties: CREAMER et al. v. BRISCOE et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

107 S.W. 635

CREAMER et al. v. BRISCOE et al.^*

Court of Civil Appeals of Texas.

January 4, 1908.

Rehearing Denied February 1, 1908.

Appeal from District Court, Comanche County; N. R. Lindsey, Judge.

Action by J. D. Briscoe and others against Josiah Creamer and others. From a judgment for plaintiffs, defendants appeal. Judgment modified and affirmed.

G. E. Smith and Snodgrass & Dibrell, for appellants. Goodson & Goodson, for appellees.

CONNER, C. J.

Appellees, as the heirs of the second wife of Josiah Creamer, instituted this suit against him and his children by a former marriage to recover an undivided six-fourteenths interest in a 160-acre pre-emption survey in Comanche county. It was agreed upon the trial of the cause that on June 17, 1871, appellant Josiah Creamer and his then wife, Malinda Creamer, were citizens of the state of Texas, residing in Comanche county, and entitled to file on and acquire from the public domain a donation homestead under our pre-emption laws of 160 acres of land, and that on said date they had then settled on and were occupying the land in controversy and had made the required affidavit for the purpose of acquiring it as a homestead; that having so settled and filed thereon the same was surveyed and field notes returned to the General Land Office on June 20, 1871; that said parties continued to reside on said land under all the requirements necessary to acquire the same as a pre-emption homestead until the ____ day of August, 1872, at which time the said Malinda Creamer died; that said Malinda Creamer left five children from her marriage with said Josiah Creamer, who with said Josiah Creamer are the appellants herein. It was further agreed that from the death of said Malinda, the first wife of Josiah Creamer, he, with the said children of that marriage, continued to reside on and occupy said land until September 24, 1873, at which time he married Mrs. Sarah Briscoe, who thereafter continued to live with said Josiah Creamer on said land until her death, which occurred in April, 1878; that at the time of her death she left the children as heirs, who, with the descendants of some who had died, are the appellees herein, said children being born to the said Mrs. Briscoe by a former marriage. Appellees, by their pleadings, claimed that the land in controversy was the community property of the second marriage, and prayed that the interest sued for be adjudged to them, subject to the right of Josiah Creamer to occupy the land during his lifetime. Appellants answered setting up title in themselves to all of said 160 acres, claiming that the same was the community property of said Josiah Creamer and his first wife, the children of said first marriage claiming as heirs of their mother, and Josiah Creamer claiming as its community survivor. Among other things appellants further answered, and there was proof tending to show that prior to the original settlement by Josiah Creamer and his first wife the land in controversy had been settled upon and improved to the extent of $100 in value by one Johnson (a single man), with the intention on his part of filing thereon and acquiring the same as a homestead, and that Josiah Creamer, for the purpose of obtaining possession and whatever right said Johnson may have had, paid the sum of $200, because of which appellants prayed for contribution in the event the land should be held to be the community of the second marriage. Appellants further set up permanent and valuable improvements in good faith made by the community of the first marriage. The trial, which was before the court without a jury, resulted in a judgment in favor of appellees for six-fourteenths of the land in controversy, and denies appellants as heirs of the first marriage all right to any part of the land, and is against all of the appellants on the issues of contribution and improvements. The decree further adjudges that Josiah Creamer is entitled to an undivided one-half interest in the land, and the right of occupancy of the whole during his lifetime, or until abandoned.

We feel constrained, by the authorities hereinafter cited in support of the proposition, to sustain the judgment below in so far as appellees are adjudged to be entitled, as heirs of Sarah Briscoe, to an undivided six-fourteenths interest in the land in controversy. Our statute (Rev. St. 1895, art. 2968) provides that: "All property acquired by either husband or wife during the marriage, except that which is acquired by gift, devise or descent shall be deemed the common property of the husband and wife, and during the coverture may be disposed of by the husband only." And the conclusion reached by us is, of course, sustainable only by adopting the rule that the status of the property in controversy as community property of the second marriage of Josiah Creamer and Sarah Briscoe, rather than that of the first marriage of Josiah and Malinda Creamer, is to be determined by conditions existing at...