Defferari v. Terry
Decision Date | 31 October 1933 |
Docket Number | No. 9887.,9887. |
Citation | 68 S.W.2d 253 |
Parties | DEFFERARI et al. v. TERRY et al. |
Court | Texas Court of Appeals |
Appeal from District Court, Galveston County; C. G. Dibrell, Judge.
Action by Dorothy Gussie Terry and husband against Louis Defferari and others. From an adverse judgment, defendants appeal.
Affirmed.
Stewarts, Maco Stewart, and W. Noble Carl, all of Galveston, for appellants.
Snell & Aynesworth and E. H. Cavin, both of Houston, for appellees.
The appellee Mrs. Gussie Terry, pursuant to a jury's verdict on special issues to the effect that her mother and Gus Defferari, prior to her birth, agreed to become husband and wife, thereafter living and cohabiting together as such, claiming and holding themselves out to the public to be so married, together with such additional findings of the court on issues not submitted to the jury as may properly be assumed to have been made, was awarded judgment against the appellants for both the title to and possession of an undivided one-fifth interest in certain lots of land in the city of Galveston, as well as an order for the partition thereof between the parties; the property having passed by the will of Louisa Defferari to her grandchildren.
The appellants were conceded to be the only other grandchildren of Louisa Defferari, the testatrix, and the appellee Mrs. Terry sued as the lawful child of one of Louisa's sons, Gus Defferari, through her claim of his common-law marriage with her mother.
Appellants assail the judgment so awarded upon contentions which, in the main, may be thus epitomized:
(1) The court should have granted appellants' request for a peremptory instruction in their favor for these reasons: (a) The undisputed evidence showing that Gus Defferari had a lawful wife throughout the alleged duration of his common-law marriage with her mother, the appellee could not have been his legitimate child; (b) the undisputed evidence having shown that the relationship between Gus Defferari and appellee's mother was illicit and unlawful at its inception, such relation would continue meretricious, having never been made legal by marriage, and appellee, if an offspring of such a union, could not be the legitimate child of Gus Defferari; (c) the evidence in this case having failed to raise an issue of fact as to common-law marriage between Gus Defferari and appellee's mother, her own evidence showing the relationship to be a mere meretricious union, it was error for the court to submit the question of common-law marriage to the jury to be determined on surmise and supposition.
(2) The verdict of the jury was contrary to the great weight and overwhelming preponderance of the evidence; hence should have been set aside and a new trial granted on appellants' motion duly made therefor.
(3) Witness Eula Miranda, having admitted that she did not remember the alleged agreement between herself and Gus Defferari, it was error for the court to allow her to give her conclusions and surmises as to the alleged agreement.
(4) City directories of the city of Galveston for the years 1905 to 1914, inclusive, coming from proper custody, in general use in the community, and properly proved by one under whose management they were compiled, after long lapse of time, were admissible in evidence to prove facts which occurred long prior to the time this controversy arose; wherefore the court erred in excluding such directories, same having been duly offered in evidence by appellants.
(5) The court erred in refusing appellants' request that the jury be affirmatively instructed that the burden of proof was upon the appellee to show by a preponderance of the evidence the affirmative of the issues of fact relied upon by her for a recovery.
(6) The newly discovered evidence of chattel mortgages signed by appellee's mother as a single person during the time of the claimed marriage to Gus Defferari, and the testimony of Joe Shannon and Tracy Merrick being discovered after trial, and being of such force that they would probably produce another result on another trial, a new trial should have been granted.
After a careful consideration of the record, it is determined that none of these contentions should be sustained. The special issues, to which the jury in each instance answered "Yes" were these:
In the opinion of this court not only were the issues as submitted clearly raised by the testimony, but there was also enough to support the jury's affirmative findings thereon; wherefore without deeming it indispensable either that the contributing elements thereof or the settled rules governing the two different attacks made upon it be here reviewed, there clearly was no reversible error in so far as concerned the quantum of evidence required in either respect.
Since the verdict as a whole plainly portends that the mother and father in fact complied with all the requisites of a commonlaw marriage under the rule in Texas, at least in the absence of some impediment to its being so recognized, as the alleged pre-existing ceremonial marriage is claimed to be, the trial court's theory of the cause in submitting the issues and its consequent judgment on the answers were proper, we think, upon the further conclusion that, were it conceded that appellee's father did have such a living wife by a prior marriage throughout the period of his having so lived with her mother, that actual relationship between her parents would at most only amount to a "marriage deemed null in law," under the concluding provision of R. S. article 2581, and she would still be the legitimate issue thereof; hence entitled to take as a grandchild under the terms of Mrs. Louisa Defferari's will.
It is true appellants' proof showed that appellee's father married another woman prior to meeting appellee's mother and did not obtain a divorce from her until after he and appellee's mother had separated following their having lived together for a period of eight years in the manner found by the jury; but there was further testimony to the effect (1) that her mother did not know either at the time she made the agreement to live with Gus Defferari as his wife or during the period she did so live with him that he had a living wife; (2) that her father, Gus Defferari, had sent his prior wife, Laura, to New Orleans before his first meeting with appellee's mother, and that Laura was reported at Galveston to have died soon thereafter from a stroke of paralysis; (3) that Gus Defferari's prior wife was known as Laura, or Laura Bella, that she lived in New Orleans, and that she had so gone home to her people there; (4) that the appellee was the child of Gus Defferari, was recognized by him as such, and that her mother during the eight years she was so living and cohabiting with him and being held out as his wife had not been other than faithful to their undertaking to so live at any time during that relationship; (5) that the testatrix herself, under whom the appellee claims, likewise during her lifetime recognized the little girl as her granddaughter, received many visits from and treated her affectionately as such.
While her father, Gus Defferari, had died some time before this suit was filed, appellee's mother, under her present married name of Mrs. Eula Miranda, was present at the trial and testified to some of the things just enumerated, among them that appellee was the fruit of her life with Gus Defferari, that she never until long afterwards heard anything about his having had a living wife before or during any part of that period, and that she herself had lived with him only during all that time.
In the given state of the record, while this precise interpretation of the final declaration of this statute—that is, so as to hold legitimate the issue of a common-law marriage deemed so null—does not seem to have heretofore been announced by a Texas appellate court, no reason is perceived as to why it should not be given such effect, considering its history, the absolutism of its terms, and the great weight of judicial decision to that effect in sister states, upon the legal equivalent of the same provision, applied to like circumstances.
The language of our statute is this, the italicizing, however, being added here:
The plain objective of this act, it not essaying to validate marriages, either statutory or common-law ones, was to legitimate children, and it dogmatically does that as to "the issue of marriages deemed null in law"; in Texas common-law marriages are of the same validity as those consummated under statutory provisions (Speer's Law of Marital Rights in Texas [3d...
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