Markley v. Barlow

• Decision Date: 12 June 1918
• Docket Number: (No. 6063.)
• Citation: 204 S.W. 1013
• Parties: MARKLEY v. BARLOW et al.
• Court: Texas Court of Appeals

Page 1013

204 S.W. 1013

MARKLEY v. BARLOW et al.

(No. 6063.)

Court of Civil Appeals of Texas. San Antonio.

June 12, 1918.

On Motion for Rehearing, June 25, 1918.

Appeal from District Court, Webb County; J. F. Mullally, Judge.

Trespass to try title by Rebecca C. Markley against S. M. Barlow, receiver of the estate of John R. Davis, and others. Judgment for defendants, and plaintiff appeals. Reversed and rendered.

Victor Keller and Frank H. Booth, both of San Antonio, for appellant. Hicks, Hicks, Dickson & Bobbitt, of San Antonio, and John A. Valls, of Laredo, for appellees.

FLY, C. J.

This is an action of trespass to try title to 116 acres of land in Webb county, instituted by appellant against John H. Davis, S. M. Barlow, receiver of the estate of John H. Davis, and her husband, A. C. Markley, who refused to join her in the suit. She alleged that she was the wife of A. C. Markley; that the land in controversy had been since January 1, 1890, the homestead of appellant and A. C. Markley, and that it had been used as such to September 9, 1915, when A. C. Markley had sought to make a sale of such homestead to said John H. Davis, it being claimed that said Markley had abandoned the homestead on or about July 15, 1915, which pretended abandonment and sale, it was alleged, was a fraud upon the rights of appellant; that her husband and Davis had conspired to defraud appellant out of her homestead and to appropriate the proceeds arising from its sale to pay an indebtedness of A. C. Markley to Davis; that Markley had also conveyed to Davis other property, the separate estate of appellant; that the homestead and said separate estate were conveyed in the same deed of conveyance. Appellees Davis and Barlow pleaded general demurrer, general denial, and not guilty, and A. C. Markley waived process and entered his appearance. The cause was tried by the court, a jury being waived, and judgment was rendered that appellant take nothing by her suit and pay all costs.

The statement of facts in this case shows that the property sued for was bought in 1888, by A. C. Markley, from the city of Laredo, and became the community estate of A. C. Markley and appellant. Immediately after it was acquired A. C. Markley, who was an officer in the American army, constructed a frame house, corral, storeroom, stables, etc. These improvements were afterwards destroyed, but in 1907 he erected a frame house, corral, fence, sheds, stalls, and feedroom. In 1908 he erected a frame house and brick underground tank, and also planted orchard, vegetable garden, and flower garden. A. C. Markley went on the farm to live in October, 1907, and stayed until August, 1908, then went on a visit North, and stayed until February, 1909, and then managed farm, but ate and slept in town of Laredo until about June, 1910, when he went on the farm, claimed to be the homestead, and, except when he left in summer to visit the North, he stayed thereon until May 31, 1914. Appellant lived with her husband at different military posts, from 1902 until 1907, when he was retired from actual service in the army. After living with Markley at Oakland, Cal., in a hotel, he left for a business trip to Arizona and Texas, and appellant went to Philadelphia, where she remained until 1910, when her husband visited her. She then went to sanitariums in Washington, D. C., until 1917. The son of Gen. Markley and appellant went on the farm in 1888, his father having been ordered to Arizona, and appellant lived there with him until about 1890, when she went to her husband at Ft. Thomas, Ariz. The son went back to the farm about 1893, and the father being ordered East in 1895, appellant went back to the farm, where she stayed until 1896, when she joined her husband in Philadelphia. Appellant never occupied any house of their own with her husband in Philadelphia or any other place. She owned a house in Hatboro, near Philadelphia, in which she lived for a short time in 1908. They had no homestead in any place except the one at Laredo, Tex. The marriage relations between appellant and her husband were strained from 1909, but the relation was never severed, and he continued to visit her. She never declared that she would not live with her husband as his wife, and had not abandoned him. Davis testified that Gen. Markley lived on the farm in 1915, and his mules, farm implements, and household furniture were moved off the place after the deed was executed to Davis in September, 1915. After the plans were laid to convey the homestead and the separate property of appellant to Davis to pay debts due him, Gen. Markley wrote a letter asking appellant to live with him on the farm. Efforts had been made by Davis prior to 1915 to get appellant to give a deed of trust on the homestead and her separate estate, but she refused to give it, claiming it as her homestead and separate estate. Whatever may have been the intention of Gen. Markley in 1908 as to abandoning the farm, he did not abandon it, but held it until he attempted to sell it in 1915. The affidavit made by him as to abandonment in 1908 was made with a view to get money which Davis was to obtain in San Antonio. The farm was not in reality abandoned. On June 18, 1909, appellant sought to designate the farm as a homestead, stating she had no other home. Her affidavit to that effect was recorded June 19, 1909. In an opinion of a certain firm of attorneys of San Antonio, given to Davis on August 25, 1915, in response to a letter written by him, it was stated:

"I understand from you that Mr. Markley now occupies the farm as a homestead, but that his wife has for several years refused to live with him on the farm, but, having abandoned him and the homestead, has taken up her home and is living in another state, and, although urged by him to return to him and the homestead, she refused so to do."

The sole ground on which the attorneys advised that Gen. Markley could dispose of the property without the consent of appellant was her abandonment of him without cause. Both Davis and the attorneys treated the property as the homestead of appellant. The evidence of abandonment relied on was a letter written by her to A. C. Markley, in reply to one written for the purpose of receiving an answer that would furnish that evidence. She replied that the state of her health precluded her living on the farm. About the letter written by him to his wife Gen. Markley testified:

"Mr. Davis knew of my writing the letter and of Mrs. Markley's reply. The purpose of writing the letter was to trap her into a refusal to live with me on the farm, and Davis knew of this purpose."

The evidence in this case clearly discloses that the property in controversy had been made the homestead of A. C. Markley and appellant in 1888, that it had never been abandoned as such, and that they had no other homestead. A. C. Markley, being an officer in the army, could not settle on a homestead in person, but through his wife and son he did occupy it, and as soon as he was placed on the retired list of the army he returned to Laredo, improved the farm, and lived on it as his homestead until he left it in September, 1915. It was recognized as a homestead by Davis and the attorneys who advised him; the latter basing their opinion as to the homestead character having been destroyed on the representation of Davis that appellant had abandoned her husband without cause. That representation was based on a letter obtained from appellant with the purpose that it be used as evidence of abandonment. The evidence clearly shows that a conspiracy existed to deprive appellant, not only of her home, but of her separate estate as well. The transaction showed a fraudulent design upon the part of the husband to deprive his wife of her home and other property.

The land became the homestead in 1888, shortly after it was acquired. Gen. Markley impressed it with that character, and appellant and her son occupied it for two years. Appellant followed her husband, who was moved from one point to another under army orders, but returned to her home in 1895, and then left again in 1896 to join her husband. As soon as Gen. Markley was retired, in 1907, he occupied the premises as his home. The home was never abandoned. The occupancy of the wife and son in 1888 was with the consent of the husband, and that act impressed it with the homestead character. McDannell v. Ragsdale, 71 Tex. 23, 8 S. W. 625, 10 Am. St. Rep. 729; Welborne v. Downing, 73 Tex. 527, 11 S. W. 501. Appellees seem to think that it was utterly impossible to give a tract of land the homestead character unless both the husband and wife live on it at the same time, but this theory is not borne out by the authorities. Nor is the intimation that a soldier, who is being moved under...