Hannig v. Hannig
| Decision Date | 13 December 1893 |
| Citation | 24 S.W. 695 |
| Parties | HANNIG v. HANNIG.<SMALL><SUP>1</SUP></SMALL> |
| Court | Texas Court of Appeals |
Appeal from district court, Travis county; Joseph H. Robertson, Judge.
Action by John Hannig against Priscilla Hannig for divorce, and to cancel a written instrument executed by plaintiff, conveying land to defendant. From a judgment for plaintiff, defendant appeals. Reversed.
The other facts fully appear in the following statement by COLLARD, J.:
This suit was brought by the appellee, John Hannig, on the 28th day of April, 1890, (petition amended June 22, 1891,) against appellant, Priscilla Hannig, for divorce, upon the ground of three years' abandonment, under aggravating circumstances of cruel treatment by defendant, and to cancel two written instruments by plaintiff, conveying to defendant lot 6, and the east half of lot 7, in block 140, in the city of Austin. The alleged grounds for cancellation of the instruments were that appellee was feeble in mind, and did not understand their nature; that they were obtained by deceit, force, threats, and undue influence; and that they were testamentary in character, and not deeds. The court submitted only the issue of three years' abandonment as grounds for divorce, and for cancellation of the instruments, in writing, two questions, viz. the want of mental capacity and understanding of the grantor necessary to contract, and whether the instruments were intended as deeds or as a will. The jury were instructed that, if they should find the want of mental capacity to contract, they would not consider the question as to whether the instruments were intended as deeds or a will, but, if they should fail to find mental incapacity on the part of plaintiff, then they would consider and find whether the instruments were deeds or intended as a will. The verdict was as follows: "We, the jury, find the allegations of plaintiff's petition of grounds for divorce to be true, and we further find that plaintiff intended the deeds as a will, and can revoke the same." Judgment was rendered, granting the divorce and canceling the deeds, according to the verdict. Defendant has appealed.
Rector, Thompson & Rector, for appellant. Z. T. Fulmore, for appellee.
COLLARD, J., (after stating the facts.)
The assignment of error to the effect that the evidence does not support the verdict for divorce should be sustained. To authorize a divorce upon the ground of three years' abandonment, separation and abandonment must concur for the full period of three years, without fault, consent, or procurement of the spouse abandoned. Rev. St. art. 2861; Pinkard v. Pinkard, 14 Tex. 355; McGowen v. McGowen, 52 Tex. 667, 668; Besch v. Besch, 27 Tex. 392. The uncontradicted evidence in this case shows that, while defendant voluntarily left plaintiff with the intention of abandonment, she came to his house, and offered to live with him again as his wife, before three years had expired from the time of separation, and that he refused to receive her in his house as his wife, or to live with her any more. These facts deprived him of the right to divorce on the ground of abandonment. On this point the court below should have set the verdict aside, and granted a new trial.
The deeds canceled by the judgment of the
court below are, and are correctly explained
by the statement of appellant under one of
her propositions, as follows: "Plaintiff
called on defendant to produce the two
deeds sought to be canceled, which she did
and he introduced them in evidence. The
first deed was as follows, to wit: `State
of Texas, county of Travis. Know all men
by these presents that I, John Hannig, of
said state and county, for and in consideration
of the love and affection that I bear to
my wife, Priscilla Hannig, do hereby grant
bargain, and sell, in fee simple, to the said
Priscilla Hannig, her heirs and assigns, the
following property situated in the city of
Austin, in the county and state aforesaid
to wit: Being all of lot 6, and the east half
of lot 7, in block 140, as known and described
in the plat or map of the city of
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...case which we have been able to find bearing upon the question under discussion, and tending to sustain the judgment, is Hannig v. Hannig, 24 S. W. 695, in which the Court of Civil Appeals of the Third District used this language: "The question now to be considered is as to the effect to be......
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...of Law (2d Ed.) 775; 9 R. C. L. § 161, p. 373; 19 C. J. § 126, p. 67. This rule has pointedly been sustained in Texas. Hannig v. Hannig (Tex. Civ. App.) 24 S. W. 695; Womble v. Womble (Tex. Civ. App.) 152 S. W. It being undisputed that appellee, more than three years prior to the filing of ......
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