Jergens v. Schiele

Decision Date04 March 1884
Docket NumberCase No. 1805.
Citation61 Tex. 255
PartiesFREDERIC K. JERGENS v. RICHARD SCHIELE.
CourtTexas Supreme Court
OPINION TEXT STARTS HERE

APPEAL from Harris. Tried below before the Hon. James Masterson.

This was a suit by the appellee for partition of three acres of land situate in the city of Houston, and of which the appellee claimed three-eighths, and he alleged the appellants owned five-eighths.

The defendants answered by general denial, and that the premises were originally agreed to be purchased by one Charles Schiele, father of plaintiff, from one John F. Crawford, who executed to Charles Schiele two deeds for the land: one dated on the 22d day of April, 1854, for one acre, and one executed 27th day of November, 1854, for two acres; that Charles Schiele never paid any of the purchase money for which a lien was retained in the deeds; that Charles Schiele had as his wife Fredericka Schiele, and the issue of their marriage was the plaintiff; that Charles Schiele died in the month of December, 1854, leaving his wife Fredericka and the plaintiff, then an infant, surviving him; that in 1856 the defendant Frederick Jergens intermarried with said Fredericka Schiele, at which time there was no improvement on the land, save a small house; that the purchase money due Crawford was unpaid; that the lien therefor subsisted, and the same was due; that Frederick Jergens, after his intermarriage with Fredericka Schiele, about the 31st day of January, 1856, paid the purchase money to Crawford. That the superior title was in Crawford until the purchase money was paid, and that Crawford executed a deed to the defendant Frederick Jergens, and his then wife, Fredericka Jergens, formerly Schiele, dated the 31st day of January, 1856, for the land in controversy; that said premises became the homestead of defendant Frederick Jergens and his then wife, Fredericka, formerly Schiele, in the year 1855, and had ever since been his homestead; that during the marriage of defendant Frederick Jergens with Fredericka they had born to them a daughter, Dorothea, January, 1858; that Fredericka Jergens, formerly Schiele, died March 29, 1858, leaving surviving her the plaintiff Richard, the daughter Dorothea, and the defendant Frederick Jergens, her husband; that on the 8th day of July the daughter Dorothea died; that defendant intermarried in the year 1859, and had greatly improved the property, to the extent of twenty-three hundred dollars. That during all the time the property had continued their homestead, and never ceased to be the homestead from 1855, and that they had reared and educated the plaintiff from infancy until he was twenty-one years old; that A. R. Masterson, by a contract with plaintiff, acquired one-quarter of plaintiff's interest in the land for legal services rendered, and that Masterson, on the 9th of February, 1881, conveyed that one-fourth to defendant Frederick Jergens. That on the 7th day of December, 1880, the plaintiff Richard Schiele conveyed all his interest in the premises to defendant Frederick Jergens, and that the same belonged to defendants.

Judgment for plaintiff, and decree of partition awarded, but with judgment in favor of Mary Jergens for $450, her portion of the improvements, with costs adjudged, five-eighths against defendants and three-eighths against the plaintiff.

Mrs. Jergens proved no title in herself. The judgment in case No. 10,623 was in trespass to try title between the appellee and the appellant, Frederick Jergens, decreeing that they were entitled, on November 15, 1880, each to one-half of the property in controversy, and decreeing partition of it in those proportions between them; that judgment was final, and no appeal had been taken from it. Appellant Frederick sought in this case to show title in himself to all of this property and homestead rights therein, acquired prior to that decree, and especially to set up title inherited by him from his daughter, Dorothea, appellee's sister, who died after their mother; appellee, by supplemental petition, pleaded that judgment in estoppel.

The petition, answer and judgment in cause No. 10,997 in the district court of Harris county, of Richard Schiele v. Frederick Jergens, showed that the conveyance by the former to the latter, relied on by Jergens for title in this case, had been on the merits of that cause adjudged to be invalid, and that it had been canceled, restoring the title to Schiele, and placing the rights of the parties as they stood before the execution of a deed to Jergens. Appellant had pleaded in his answer this deed from appellee for title, and by supplemental petition this judgment canceling it had been alleged in reply.

W. P. Hamblin, for appellant, cited: McCoy v. Crawford, 9 Tex., 356, and cases there cited; Andrews v. Hagadon, 54 Tex., 571;Pressley's Heirs v. Robinson, 57 Tex., 453;Putnam v. Young, 57 Tex., 461;sec. 52, art. 16, Const.; Thompson v. Westbrook, 56 Tex., 265;Harris v. Catlin, 53 Tex., 1;Roosevelt v. Davis, 49 Tex., 463.

Hutcheson & Carrington, for appellee, cited: Freeman on Judgments, secs. 256, 272, 302; Tadlock v. Eccles, 20 Tex., 782;Girardin v. Dean, 49 Tex., 243;Baxter v. Dear, 24 Tex., 17;Wright v. Dunning, 46 Ill., 274;Higgins v. Johnson, 20 Tex., 389;White v. Shepperd, 16 Tex., 172;Farmer v. Simpson, 6 Tex., 310; Thompson on Homestead, pars. 696 and 698; Amphlett v. Hibbard, 29 Mich., 298; Sloan v. Coolbaugh, 10 Iowa, 31; Chase v. Abbott, 20 Iowa, 158.

WILLIE, CHIEF JUSTICE.

The court did not err in admitting in evidence the proceedings in the two suits known in the transcript as No. 10,623 and No. 10,997, which were brought by Richard Schiele against Frederick Jergens to establish the right of the former in the two tracts of land bought by his father from John F. Crawford.

These lots, upon the defendants' own theory of the case, were five-eighths the separate property of the defendant Frederick Jergens, and three-eighths the community estate of himself and his wife Mary. The appellee's claim...

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39 cases
  • Astin v. Martin
    • United States
    • Texas Court of Appeals
    • October 27, 1926
    ...the wife is not a necessary party to the action, and a judgment against the husband is binding upon her homestead interest. Jergens v. Schiele, 61 Tex. 255; San Antonio v. Berry, 92 Tex. 319, 48 S. W. 496; Bean v. Brownwood (Tex. Civ. App.) 43 S. W. 1036; Coal Co. v. Henry (Tex. Civ. App.) ......
  • Von Rosenberg v. Perrault
    • United States
    • Idaho Supreme Court
    • January 10, 1898
    ...540; Primm v. Barton, 18 Tex. 206; Jones v. Jones, 15 Tex. 143; In re McClean, 12 La. Ann. 222; Carter v. Conner, 60 Tex. 52; Jerfens v. Schnele, 61 Tex. 255.) J. Sullivan, C. J., and Huston, J., concur. OPINION QUARLES, J. The plaintiffs (appellants here) brought their suit in the court be......
  • Kubena v. Hatch
    • United States
    • Texas Supreme Court
    • February 27, 1946
    ...on the homestead the wife is not a necessary party for the reason that the plea of homestead would be no defense to the suit. Jergens v. Schiele, 61 Tex. 255; City of San Antonio v. Berry, 92 Tex. 319, 48 S.W. 496; Cooley v. Miller, Tex.Com.App. 228 S.W. 1085, and authorities cited. Thus Na......
  • Clark v. Puls
    • United States
    • Texas Court of Appeals
    • February 4, 1946
    ...in the homestead will defeat an action involving it, she must be made a party to the suit if she is to be bound by the judgment. Jergens v. Schiele, 61 Tex. 255; Behrens v. Behrens, Tex.Civ.App., 186 S.W.2d 697; Speer's Law of Marital Rights in Texas, Section 522. The pleadings of a strange......
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