Long v. Long

• Decision Date: 12 November 1902
• Citation: 70 S.W. 587
• Parties: LONG et al. v. LONG.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

Page 587

70 S.W. 587

LONG et al. v. LONG.^*

Court of Civil Appeals of Texas.

November 12, 1902.

Appeal from district court, El Paso county; J. M. Goggin, Judge.

Action by W. H. Long against Anna Rebecca Long and others. From the judgment, plaintiff and certain defendants appeal. Affirmed.

Edwards & Edwards and M. W. Stanton, for appellants. Millard Patterson and C. N. Buckler, for appellee.

NEILL, J.

This suit was brought by W. H. Long personally, and in his capacity as executor and trustee under the will of Julia Long, deceased, against Nina D. Long, Ralph W. Long, and the appellee, Anna Rebecca Long, in the ordinary form of an action of trespass to try title, to recover possession of lots Nos. 4 and 5 in block 23, according to Tay's map of part survey No. 9, in the city of El Paso, Tex. Anna Rebecca Long answered by a plea of not guilty, and also expressly pleaded that she is the wife of her co-defendant Ralph W. Long; that the property sued for is that of her husband, and had been partitioned and set apart to him out of his mother's estate, one-third of which he took under her will; that before the institution of this suit, and while she and her husband were living together, they took possession of and occupied said property as a homestead, and that the same was then, and has ever since remained, their homestead; that, while the lots were so occupied by them as a homestead, her husband, in the year 1900, without cause, abandoned her, leaving her in the possession of said premises; that, as his wife, she is entitled to remain and occupy it as the homestead of the family; that her husband is in collusion with W. H. Long to deprive her of the possession of the property in controversy, and refuses to claim a homestead interest in it, or to join her in her plea of homestead, for the purpose of depriving her of her rights in the property, and assisting plaintiff in ejecting her from the possession of the same. Neither Ralph W. Long nor Miss Nina D. Long answered plaintiff's petition; but, after the plaintiff had filed general and special exceptions to appellee's answer, they both came into court and adopted such exceptions of plaintiff, and prayed judgment of the court upon the sufficiency of appellee's answer. After which they both filed a general denial to the allegations in appellee's answer; their answers being signed by the same attorneys that brought the suit, and represented the plaintiff. The issues of fact in the case were submitted by the court to the jury, who found that there was a partition of the property, and that the property sued for by the plaintiff, W. H. Long, was set apart to Ralph W. Long, and became thereby his separate property. They further found for Anna Long and Ralph W. Long, and that the property in question is their homestead. Upon this verdict the judgment appealed from was entered.

Conclusions of Fact.

Julia A. Long, the wife of W. H. Long, and mother of Ralph W. and Nina D. Long, died in the city of El Paso in the year 1884, leaving a will by which she devised her estate to her husband and children, giving each a joint and equal interest in it. That is to say, W. H. Long, Ralph W., and Nina D. Long, by virtue of the will, each took an undivided one-third interest in the testatrix's estate. The property in controversy, as well as a considerable number of other parcels of property situated in the city of El Paso, was and is the property of Julia A. Long, deceased, and of her estate. The will constituted W. H. Long the trustee of the children of the deceased wife, with power to manage their interest in the estate for their sole benefit, and provided that when the children reached the age of 21 they should each receive the sum of $10,000 out of their respective shares of the estate, and when they attained the age of 25 they receive the balance due them. Ralph W. and Nina D. Long had each attained the age of 25 when this suit was instituted, and, under the terms of the will, were entitled to have their part of the estate of their deceased mother set aside. Ralph W. married the appellee, Anna Rebecca Long, in Cincinnati, Ohio, on the 15th of February, 1899, and carried her to El Paso, Tex., to live with him. He lived with her about 10 months, and then, without cause or justification, abandoned her; leaving her in the occupancy of a dwelling house situated upon the lots in controversy, which they occupied as their homestead from April, 1899, up to the time Ralph W. forsook his wife. While the evidence is conflicting, and to a great extent circumstantial, it is reasonably sufficient to show that, prior to the time Ralph W. and his wife moved into the house on the lots in controversy, a verbal agreement of partition was made between Ralph W. and Nina D. Long of a part of the property which they took under the will of Julia A. Long, deceased, by which it was orally understood and agreed between the parties that Ralph W. should take and have as his separate property the premises in controversy; that his sister, Nina D., should take and have as her separate property certain lots on Mesa avenue, upon which a house was situated, numbered 1001, which was estimated in value as equal to that allotted to Ralph W., as aforestated; and that W. H. Long was to take one-half interest in certain property situated in the city of El Paso, known as the "Melrose House," it being estimated and agreed that the one-half interest allotted to him was of the same value as each of the other two parcels of property allotted to his son and daughter.

These conclusions as to the partition and allotment of the property are, we think, warranted by the following testimony: W. H. Long testified: "Before he [Ralph] was married he expressed a desire to move into the house on Mesa avenue, and which, together with the lots, comprises the property in controversy. I had no objection to his moving into it. That was some time in October, 1898. When we talked the matter over, I told him that, when he moved into it, it would be no more than just that his sister and I should have the same interest in some other property; and I told him he could collect the rent on that house from the 1st of November, 1898, and that Nina was to have the rent from another house, situated and known as 1001 Mesa avenue. These houses were then renting for the same amount. In reference to my interest in the house then known as the `Melrose House,' it was at that time community property, and the whole house was then renting for $60 per month. I was to take the rent from that house, and thus be on equal terms with them. That put us all on equal terms, and each received $30 rent per month for each of the three houses." Miss Nina testified: "I know of no arrangement my brother had with my father in reference to the property in controversy, except that Ralph and his wife should live at 705 Mesa avenue, and I was to have the rent for 1001 Mesa avenue, and papa was to have one-half the rent from the Melrose house, so we would all be equal." Ralph W. testified: "The arrangement I had with my father and sister was just this: I was to move in there temporarily. The rent of the house was given to me from November 1, 1898, before I was married, and during my occupancy I was to have the benefit of the rent. In other words, I was to live there in lieu of the rent. My sister was to have the rent of 1001 Mesa avenue; my father, of the Melrose house." This testimony of the father, son, and daughter, who are making a common cause against the deserted wife of the son, if standing alone, might not be sufficient to warrant a jury in finding that there was a partition of the three parcels of property mentioned in their testimony, among them. But it does show an agreement and understanding between all three in reference to the three parcels that the rents of the several parcels were equal, and that each took or was entitled to the rent of the piece of property assigned to him or her. Add to these facts, shown by the testimony of these three witnesses themselves (1) that each of the three parties afterwards collected and appropriated the rents of the several pieces of the property assigned to each; (2) that prior to this agreement the rents of these properties had been collected by W. H. Long, and credited to the estate; (3) that Ralph W., after this agreement, repaired the house on the property in controversy, and fitted it up for his home, spending in repairs of his individual property about the sum of $700; (4) that Miss Nina D. Long took possession of the house, 1001 Mesa avenue, made repairs on it at her own expense of about $300, collected the rents due thereon, divided the lots upon which the house was situated, and built a five-room brick house, with bathroom and shingle roof, on them, at her own expense, and paid about $1,800 of her own money for it; (5) that W. H. Long collected all the rent afterwards on the Melrose house, and then sold it and appropriated to his own use the purchase money received; (6) that after such agreement W. H. Long rendered the property in controversy for taxes as the property of his son, Ralph W., the other piece of property as the property of his daughter Nina D., and the Melrose property as his own, all of which property had theretofore been rendered for taxes as the property of the estate of his deceased wife; (7) the testimony of the appellee that Miss Nina recognized the fact that the property in controversy was set apart to Ralph Long when all the parties were together in the same room, and the fact was recognized that the property at 1001 Mesa avenue was set apart to Nina Long; that 705 Mesa avenue (the property in controversy) was set apart to Ralph; and that W. H. Long was to take one-half the rents of the Melrose house,— and we think the testimony is amply sufficient to show such facts and circumstances as would warrant the jury in finding that there was an oral...