Faulk v. Faulk
| Decision Date | 01 January 1859 |
| Citation | 23 Tex. 653 |
| Parties | JOHN T. FAULK v. KIZIAH FAULK AND OTHERS. |
| Court | Texas Supreme Court |
It is not a valid objection to a petition, that parties claiming different interests, the one a life estate, and the other an unqualified title in fee simple, assert their respective interests in the same action.
Where the rights of infants require protection against the misconduct of their father, the authority of the court may be invoked against him, as against a stranger.
See this case, for circumstances under which the court, for the protection of children possessing property, exercised its authority against the father's control of it, in order to preserve the rights of the minors; and also for the frame of a petition, which presented a case entitling the minors to the interposition of the court, in their behalf.
An instrument of writing, addressed to a third party, signed by the writer, and the party to whom it is addressed, reciting that the maker thereof had placed in the possession of the other, his wife and children, and certain slaves and other property, specified and described, and that he confided his wife and her children, “ and her property,” to his care, does not of itself vest in the wife a life estate in the property with remainder to the children; nor does it operate to transfer the title to the property, by gift, from the father to the wife and children.
Under an allegation in the pleadings, that such gift for life, with remainder, was made verbally before the execution of the instrument, the question, whether there is evidence of such a gift, is one for the decision of the jury.
An instrument conveying property, which, by its terms, was designed to operate in the life-time of the donor, and was affectuated as a gift, by delivery, is properly construed to be a gift, though inartificially drawn, and containing expressions which would be more appropriate in a will, than in a deed, and possessing some of the characteristics of a will.
No question can arise, as to the effect of such an instrument under the law of another state, in which it was executed, where there is no averment or proof respecting the law of that state.
In a suit between minor children and their father, brought by the former to recover property alleged to have been given to them by the latter, if it appear that the father is competent to take care of his children, and their property, and to raise his said children, the recovery of the title and right to the property, by the plaintiffs, will not divest the parent of the custody and education of the children, and the management of their property.
Where special issues have been submitted to a jury, and they have failed to agree upon one of them, and the parties, by consent, withdraw from the jury, the issue in question; if it appear that it was not thereby intended that a mis-trial should be had, such withdrawal is to be deemed a waiver of the jury trial, in the decision of that issue, and a tacit consent that it be decided by the court.
It is only on the application of a party, that the court is required to impanel a jury, in causes of equitable cognizance; and it is not necessary, as in cases of legal cognizance, that the parties should waive a jury.
ERROR from Henderson. Tried below before the Hon. John H. Reagan.
Suit was commenced on the 6th day of June, 1856, by Kiziah Faulk, one of the defendants in error, against John T. Faulk, the plaintiff in error, for a divorce, alleging, in her petition, that the defendant was a resident citizen of the county of Henderson, state of Texas; that they had, as the offspring of their marriage, three children, to wit, Jonathan James, Alfred Andrew, and Nancy John Faulk, who were minors of tender years, and who owned certain property, consisting of negroes, mules and horses (and described particularly in the petition), which the plaintiff alleged was conveyed to them by deed of gift, from the defendant, on the 3d day of August, 1855, filed with the petition as an exhibit, as follows:
“ State of Louisiana, Parish of Ouachita. Now, be it known, to whom it may concern, and particularly I notify my children, my five oldest ones, David, Hannibal, Phebe, John and Robert, I do this day bestow on my three younger children, Jonathan James, Alfred Andrew, and Nancy John, all of my property that is now in Texas, with the three last named children in Texas, described as follows: two negro men, Herrod and Abram, each about 24 years old, a woman, Louisa, about 32 years old, and her six children, two of them boys, Jesse and Green, and four girls, Hester, Flora, Texas, ____. The oldest of Louisa's children, twelve years old, the youngest two years; and one other girl, Harriet, twelve years old; ten in number, worth six thousand dollars, which sum is, two thousand dollars for each of the children; I do hereby donate the same to those three last named children, for their support and education; I do hereby warrant and defend the same to them for their own proper use, benefit and behoof, forever. And when the first living one comes to mature age of twenty-one, then the property, original, with the increase, must be divided, and the mature aged one, must have its equal and rightful portion; and if one of the three children dies before arriving to maturity, the two living ones shall be the heirs, and if two of them dies before arriving to maturity, then the living one shall heir all of the original, and the increase of this donated property; and my wife, the mother of Jonathan James, and Alfred Andrew, and Nancy John, I hereby appoint her, with her brother William, to be the guardian to the said children, in case of my death before their death.
W. F. HATCHETT.”
“The following lines I make a codicil to the former gift: I decree that my wife, Kiziah Faulk, shall have awarded her, out of my property, $2,000 after my death, if she survives me; this donation of $2,000 is to be made out of my property that is now in Louisiana.
Attest my hand this 30th of August, 1855.
J. T. FAULK.”
“Codicil continued. In addition to the above-named negro property in Texas, now in the care of my wife Kiziah, and her brother William H. Faulk, there is four mules and one mare and colt, and one grey stud horse, the same is all for my wife and her children, Jonathan James, and Alfred Andrew and Nancy John.
+---------------------------------+
¦Attest my hand, ¦JOHN T. FAULK.”¦
+-----------------+---------------¦
¦“T. D. KINGSBURY,¦ ¦
+-----------------+---------------¦
¦W. F. HATCHETT, ¦ ¦
+-----------------+---------------¦
¦SAMUEL COLLINS.” ¦ ¦
+---------------------------------+
This instrument was duly authenticated, and recorded in the office of the county clerk of Henderson county.
The petition alleged, that the defendant was advanced to a great age, to wit, seventy years, and that he was incompetent to raise and educate the said children; that he had got possession of the property above described, and declared that he intended to retake the same to himself again, and remove it beyond the limits of the state of Texas, without leaving the aforesaid children, anything for their education or support. The plaintiff alleged, that they were married in the year 1850, and that in consequence of the ill treatment of the defendant, she removed to the state of Texas in the year 1854; that the defendant followed her in the year 1856, and came to her house, and resumed his former course of ill treatment. The premises considered, she prayed for a divorce, for a writ of sequestration to seize and take the said property, and a decree, vesting the title thereto in the said minor children.
The plaintiff made an affidavit, and gave bond for the sequestration; the writ was issued on the 7th day of June, 1856, and executed on the tenth day of the same month, by the seizure of the property. Replevy bond was given by the plaintiff, in July, 1856, and the property delivered to her. The defendant demurred to the petition, and filed a motion to quash the sequestration.
The plaintiff then amended her original petition, and alleged, that when she left the home of the defendant, in the state of Louisiana, to come to Texas, she did so, with the approval of her husband, who delivered the property therein named, to her brother, William H. Faulk, to convey the same with petitioner, to the state of Texas, for the use of plaintiff and the said children. The plaintiff further alleged, that her said brother, under the direction of the defendant, provided her a home, and placed the said slaves, and the other property, in the possession of the children and the petitioner. That in the summer of the year 1855, at the request of the defendant, she visited him in Louisiana, where he made and delivered to her the deed heretofore recited; and procured one of the witnesses thereto, to accompany the petitioner home in Texas, for the purpose of authenticating the same for record, and to have the same recorded in the county clerk's office in Henderson county; all of which was accordingly done, in the month of September, 1855. That the defendant left the state of Texas in June, 1856, and returned to his home in the state of Louisiana; and had no intention of returning to this state.
On the 7th day of November, 1856, the sequestration in this cause was dismissed, and a judgment was rendered against the plaintiff, Kiziah Faulk, and the securities on her bond, for the sum of $6,000, to be satisfied by the delivery of the negroes sequestrated to the defendant, John T. Faulk.
On the 10th day of November, 1856, the said minor children, by their next friend, William H. Faulk, filed a petition to enjoin the judgment above recited; their petition gave a history of the difficulties between their father and mother, as hereinbefore stated, together with the statement as given, as to the suit brought by...
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