Gardner v. Burkhart

• Decision Date: 05 September 1893
• Citation: 23 S.W. 709
• Parties: GARDNER v. BURKHART et al.
• Court: Texas Court of Appeals

23 S.W. 709

GARDNER v. BURKHART et al.

Court of Civil Appeals of Texas.

September 5, 1893.

Appeal from district court, Hopkins county; E. W. Terhune, Judge.

Action by Mollie Burkhart and others against Edward Gardner. From a judgment for plaintiffs, defendant appeals. Reversed.

The other facts fully appear in the following statement by LIGHTFOOT, C. J.:

This suit was brought by appellees, Mollie Burkhart and husband, to recover an interest in 160 acres of land which she claims by inheritance from her deceased mother, and to cancel certain patents. There was a judgment for plaintiff below for three-eighths of 80 acres, subject to the homestead claim of appellant, Edward Gardner, from which he has appealed. There is no brief or appearance filed by appellees, and under rule 40 (20 S. W. Rep. ix.) we are inclined to regard the brief of appellant as a proper presentation of the case. The following assignments of errors will be sufficient to present the views we take of the case: "(2) The court erred in his second conclusion of law, in holding that the application for a homestead survey by defendant on March 3, 1868, and the survey made thereunder April 13, 1869, were void, and that the same were abandoned by him in 1870, as said finding is not warranted by the facts as found by the court. (3) The court erred in his third conclusion of law, in finding that on the 15th day of March, 1871, defendant had made no effort to appropriate the land in controversy, and that the first effort made by him to appropriate it was on July 12, 1871, as the same is contradicted by the facts as found by the court." "(6) The court further erred in his conclusion of law, in holding that the east 80 acres of land in controversy was community property between defendant and his first wife." The facts were substantially as follows: Ed Gardner, (appellant,) who was an adult, single, white man, entered upon the 160 acres of land in controversy, and made application therefor under the homestead laws of the state on March 3, 1868. At the time of such application, Ed Gardner and his brother John, who was also a single man, were in actual possession, built a dwelling house in the center of the tract, and inclosed and put into cultivation land on each side of the house, and in 1869 the land was surveyed by Ed Gardner, and the field notes returned to the general land office. The two brothers lived upon and cultivated the land in 1868, 1869, and 1870, and in the last-named year divided it into two 80-acre tracts by running a line through the house, John taking the west 80 acres, and Ed the east, each continuing to live in the house, and to cultivate and claim his respective tract. On March 15, 1871, Ed Gardner married a widow, who had, at the time of such marriage, an infant daughter, Mollie, (appellee,) who lived on the place with her mother and stepfather until her mother died, December 31, 1872, and then continued to live in the place with her stepfather, Ed Gardner, until her marriage with Mr. Burkhart, November 2, 1887. On July 12, 1871, Ed Gardner, as the head of a family, made another application for the survey of the eastern 80-acre tract, together with 55 acres more adjoining it on the east. This 135 acres was surveyed for him October 25, 1872. He was married again in August, 1873. He made the requisite proof of occupancy, etc., and patent was issued for the 135 acres May 10, 1876, and he has ever since used and occupied it as a home. The west 80 acres of the original 160-acre tract was patented to John Gardner, August 23, 1876. After Ed Gardner made his proof under the survey of the 135-acre tract, there was some mistake in the land office under which the patent was issued on November 18, 1874, for the original 160 acres; but this was canceled, and the patents correctly issued, in 1876.

J. A. B. Putman, for appellant.

LIGHTFOOT, C. J., (after stating the facts.)

Under the facts, the first question presented...