Kirkwood v. Domnan
| Decision Date | 01 May 1891 |
| Citation | 16 S.W. 428 |
| Parties | KIRKWOOD <I>et al.</I> v. DOMNAN <I>et al.</I> |
| Court | Texas Supreme Court |
Herring & Kelley, for plaintiffs in error. S. L. Samuels, for defendants in error.
This suit was brought by the defendants in error for partition of a house and lot in the city of Waco. Bettie Kirkwood was once the wife of G. W. Allen. The property in controversy was purchased during the existence of her marriage with Allen, and was their community property. They had some minor children, and resided upon the property as their homestead. In the year 1882, they were divorced, without any mention or disposition of their property. The divorced wife continued to reside upon the property, and maintain their minor children, without assistance from her former husband. In the year 1885, Allen, the divorced husband, executed a deed of trust upon the property to secure a debt that he owed the defendants in error, under which the property was sold and conveyed to defendants in error. The divorced wife was still residing upon the property at the date of these transactions. Shortly after the execution of the deed of trust she married Kirkwood, and continued to reside on the land. It was agreed that the land could not be equitably partitioned, and that, if the court found in favor of the plaintiffs, it should be sold without the intervention of commissioners for the purpose of partition. The cause was tried without a jury, and a decree was rendered directing a sale of the land, and a division of the proceeds of sale equally between plaintiffs and the defendant Bettie Kirkwood; "and that each party pay the costs by him incurred, to be deducted from the share in said proceeds belonging to such party." It is contended for plaintiffs in error that the homestead privilege of the wife survived the divorce, and consequently that the deed of trust executed by her former husband, and all of the proceedings thereunder, were prohibited by our constitution and laws. It is provided by our statutes that "the court pronouncing a decree of divorce from the bonds of matrimony shall also decree and order a division of the estate of the parties in such a way as to the court shall seem just and right, having due regard to the rights of each party and their children, if any: provided, however, that nothing herein contained shall be construed to compel either party to divest him or herself of the title to real estate." Rev. St. art. 2864. Allen and...
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Cameron v. Cameron
...v. Busby, 457 S.W.2d 551, 554 (Tex.1970); Taylor v. Catalon, 140 Tex. 38, 41-42, 166 S.W.2d 102, 104, (1942); Kirkwood v. Domnan, 80 Tex. 645, 647-48, 16 S.W. 428, 429 (1891). In both instances, this "separate property" is not within the constitutional definition, but is created by the fact......
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S.C. v. M.B.
...just as if they had never been married." Taylor v. Catalon , 140 Tex. 38, 166 S.W.2d 102, 104 (1942) (citing Kirkwood v. Domnan , 80 Tex. 645, 16 S.W. 428, 429 (1891) ). Terminology about property interests has at times been imprecise, but tenancy in common is the correct characterization o......
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Laster v. First Huntsville Properties Co.
...and right" division also includes the power to order the sale of the homestead and the partition of the proceeds. Kirkwood v. Domnau, 80 Tex. 645, 16 S.W. 428 (1891); Hedtke, 112 Tex. at 408, 411, 248 S.W. at 22-23 (1923); McIntyre v. McIntyre, 722 S.W.2d 533, 537 (Tex.App.--San Antonio 198......
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Taylor v. Catalon
...they become tenants in common in the property or joint owners thereof, just as if they had never been married. Kirkwood v. Domnan, 80 Tex. 645, 16 S.W. 428, 26 Am.St.Rep. 770. In the absence of an assignment of error, the only objections that can be considered on appeal are those which are ......