Gardenhire v. Gardenhire

• Decision Date: 03 November 1923
• Docket Number: (No. 10391.)
• Parties: GARDENHIRE v. GARDENHIRE.
• Court: Texas Court of Appeals

258 S.W. 1077

GARDENHIRE v. GARDENHIRE.

(No. 10391.)

Court of Civil Appeals of Texas. Fort Worth.

November 3, 1923.

Rehearing Denied December 1, 1923.

Writ of error dismissed for want of jurisdiction January 23, 1924.

Appeal from District Court, Stephens County; W. R. Ely, Judge.

Suit by Mrs. K. C. Gardenhire against A. B. Gardenhire. Judgment for plaintiff, and defendant appeals, and plaintiff reserves cross-assignments. Reformed and affirmed.

Scott, Brelsford, Funderburk & Ferrell, of Eastland, for appellant.

Burkett, Orr & McCarty, of Eastland, for appellee.

BUCK, J.

Mrs. K. C. Gardenhire sued her husband, A. Brown Gardenhire, for a divorce and a division of the property. Both parties reside in Stephens county. From a judgment granting a divorce to plaintiff, awarding plaintiff and defendant each a one-half interest in the northeast and the northwest quarter of section No. 90, block 4, Texas & Pacific Railway Company survey, as community property of plaintiff and defendant, and awarding plaintiff 6/16 and awarding defendant 10/16 of the southwest quarter of section 49, block 6, Texas & Pacific Railway Company survey, and making a division of the personal property, which the court found was community property, the defendant has appealed, and plaintiff has reserved cross-assignments.

The first assignment complains of the refusal of the court to admit testimony of J. B. Richardson, a witness for defendant, in answer to a question with reference to J. G. Gardenhire having bought for A. B. Gardenhire the home place. He testified:

"Yes, sir; he told me about helping all his children out; now in the first place he said, `You know I bought Ben a home from you and deeded it to him.' He said he bought this place for Brown, too; `I have done all I could for my children;' that is everything he told me."

Appellant urges that the said testimony is admissible as the declaration of J. G. Gardenhire, since deceased, and as supporting and corroborating the testimony of defendant A. B. Gardenhire, to the effect that his father furnished the money with which to pay for the N. W. 1/4 of section 90, block 4, Texas & Pacific Railway Company survey, known as the Brock or home place, and as supporting and corroborating the testimony of witness Ben Gardenhire to the effect that he saw his father, J. G. Gardenhire, hand the last payment due on said premises to the defendant, and heard him say he had bought the Brock place and paid for it, and that it was Brown's property, and that plaintiff was sitting in the room when the old man made the declaration; and said testimony was further admissible as tending to prove a parol gift.

To the same effect are assignments 2 and 3. Assignment 2 complains of the failure of the court to admit the testimony of Ben Gardenhire, a witness for defendant, who was asked on direct examination by the attorney for defendant what he heard his father, J. G. Gardenhire, say with reference to buying a new place for Brown, because he had sold the place at Cotton Plant, to which the witness answered:

"I heard him say, when he first sold it, said he was going to buy Brown another one."

Assignment 3 complains of the action of the court in excluding the testimony of Locke Gardenhire, a witness for defendant, to the effect, when the witness was asked by the attorney for the defendant whether he ever heard his father say anything about buying the place up around Cotton Plant and trading it for horses and was going to replace it, to which said witness answered:

"Yes, sir; bought Brown a place and sold it to old man Colby; swapped it to him."

This last testimony, as well as the testimony to the exclusion of which assignments 1 and 2 are directed, was excluded by the court. The testimony was in effect a free translation of what purported to be the statements of the father of the defendant.

We will discuss the three assignments together. A. Brown Gardenhire testified that his father bought a place for him in 1887, near Cotton Plant, and later got a chance to trade it off to a man by the name of Colby for stock; that he told him that he would buy him another place; that when his father bought the place near Cotton Plant for the defendant a deed was made to the defendant and recorded; that a few years prior to the trial some one attempted to perfect his title to the Cotton Plant land and wanted defendant to swear that the land had been sold to Colby, as he did not take a deed when he bought it; that his father got stock in trade for the place, but never gave him any of the stock; that later he wanted to buy a place owned by a man named Brock, who lived in Carrolton, Mo.; that his father agreed to buy the place for him in about 1889 or 1890; that he sent the money through an old man who ran a little bank near where the defendant lived, and the first payment on the place was $225; that the total consideration was $750, and that the $525 was evidenced by three notes of $175 each, due 1, 2, and 3 years from date; that his father paid two of the notes himself, and that he paid the last note, amounting to $225 with interest, but his father furnished the money; that his father died in 1911; that his father left no will, but his mother made a will. What is known as the Brock place is the N. W. 1/4 of section 90, block 4, Texas & Pacific Railway Company survey.

Richardson testified, as shown by the statement of facts, as follows:

"I knew old man J. G. Gardenhire. I lived by him for 4 or 5 years. I lived on White Flat there on the Ben Gardenhire place, he called it. I sold it to the old man — he bought my place for Ben, made him a present of it, and I deeded it to him. He, the old man, bought my place, and had the deed made to Ben Gardenhire. He gave me 40 head of cattle for it. I had a talk with the old man some little time before he died. I don't know whether it was during his last sickness or not. He was staying at Brown's home. We were there threshing, and went in and talked with the old man; about an hour I guess. I do not know anything personally about the trade with Brock for that place, I just know Brown lived there and owned the place. I was 70 years old last December."

Ben Gardenhire testified that he was the son of J. G. Gardenhire and the brother of Brown Gardenhire, and, after testifying about the division of his mother's estate, he said:

"I know where the land deeded by Brock and his wife to Brown is, the northwest quarter of section 90. I think I know how Brown got it. Brown bought it from a man by the name of Brock, and his father paid for it for him. I seen my father pay one payment, the last payment; give Brown the money to pay for it. I have heard my father speak lots of times about buying the place and giving it to Brown. I heard my father say he had bought the Brock place and had paid for it; it was Brown's property. He handed him the last payment; handed it to him in bills right in my brother's own house. His wife was in the room sitting off a piece. I don't know whether she heard it or not, but she could have heard it, if not hard of hearing. When he made the last payment he said to Brown, `Now I have paid for you one, and I have paid for Ben one.' Our places adjoined. My father paid for my place. I did not go to town the morning Brown paid that last note off. I don't know how much he gave Brown that time; I did not count it; it was rolled up in bills; and told him that would make his other payment, would pay his note off, and I guess he knew what it was. He said he had paid for it; that he had bought me one; and that paid off Brown's. That was the northwest quarter of section 90 where Brown is now living."

Locke Gardenhire testified in part as follows:

"My understanding of the land Brown bought from Brock in 1900 is that my father helped him pay for it. He said he had. He said he had bought Brown a place and was going to buy me one. He did not buy me a place. He did not live long then. I did not see the old man give Brown Gardenhire any money to pay to Brock. I don't know anything about that."

Irrespective of whether the statements made were admissible or not, we have concluded, in so far as the parts of the testimony given by Locke and Ben Gardenhire, and excluded by the court, are concerned, that there is sufficient testimony from these witnesses of the same purport given in the record as to render the exclusion of the testimony mentioned harmless. As to the testimony of J. B. Richardson, which was excluded, the same cannot be said. Declarations and answers made by persons deceased at the time of the trial are admissible under certain circumstances, namely, to prove pedigree, to prove birth, etc. We would judge from the cases cited in support of these three assignments that appellant relies, in part at least, on that class of cases holding that a statement of an ancestor or grantor under whom a litigant claims title, which tends to impeach, disparage, or deny such title, is admissible against the parties claiming under such ancestor or grantor. He cites the case of Grace, Administrator, v. Hanks, 57 Tex. 14. In that case, to establish the right of appellant to recover, reliance was had on the validity of a conveyance from Bumpass to Woolfolk. The other side introduced a statement of Woolfolk to the effect that Woolfolk had stated that he had paid nothing for the land and only took title from Bumpass for the purpose of selling the land and paying the proceeds thereof to him, in order to prevent the sale of the same by the creditors of Bumpass. The court held the admission of this testimony as proper, and that such testimony was corroborated sufficiently by other evidence, and affirmed the judgment.

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