McDougal v. Bradford

• Decision Date: 21 April 1891
• Citation: 16 S.W. 619
• Parties: McDOUGAL <I>et al.</I> v. BRADFORD <I>et al.</I>
• Court: Texas Supreme Court

16 S.W. 619

McDOUGAL et al. v. BRADFORD et al.

Supreme Court of Texas.

April 21, 1891.

Commissioners' decision. Appeal from district court, Denton county.

Owsley & Walker and A. W. Robertson, for appellants. Ferguson & Davidson and Matt. Dougherty, for appellees.

COLLARD, J.

The first assignment of error is: "The court erred in finding the land in controversy to be the community property of Stephen and Jane Hiatt." It was in proof that during the life of Stephen Hiatt's first wife he owned a place in Louisville. His first wife died in 1853, and he was married again, in 1854 or 1856, to Jane Curley, while yet living on the place in Louisville, Denton county, Tex. His second wife, Jane, died in 1862, and he was married again to Jennie Walden, (now Jennie McDougal, one of the defendants,) in December, 1862. He sold the Louisville place, (at what time does not appear,) and in the fall of 1860, during the life of Jane, purchased the 6 acres and the 39¾ acres of land in controversy. It is not shown what he did with the proceeds of the Louisville place, nor is it shown that any of it went into the purchase of the land in controversy. We see, then, that on this evidence the finding of the court was correct that the property in suit was community of the second marriage with Jane Hiatt. He had not, however, fully paid for the six acres of land at the time of his marriage with his third wife, Jennie. He owed some $350 on it. The deed to it, dated the 27th day of November, 1860, was an absolute deed to him, reciting the consideration — $475 — as paid in cash. Mrs. McDougal, the third wife of Stephen Hiatt, testified that she had some personal separate estate when she was married to Stephen in December, 1862, and that she "let him have money with which to pay for a portion of the land in controversy;" and again she says: "After we were married, the balance of $350 was paid in a pair of mules and a yoke of oxen. When I married Stephen Hiatt I had eleven head of cattle, five bead of horses, and $165 in gold, all of which was taken charge of by Stephen Hiatt, and disposed of by him." This evidence is too indefinite to show what amount, if any, of her separate property was used to pay the balance due on the six acres of land. She had no mules, and she does not show that the oxen were a part of her 11 bead of cattle. On this subject J. A. Carroll testified that "Stephen Hiatt paid Potter [the vendor of Hiatt] a yoke of steers and a horse before the war for a part of the consideration of the six acres of land," and he understood a pair of mules were paid, too, but the witness said his mind was not clear about the mules; "but," he says: "I know that the horse and oxen were paid prior to May 3, 1861, for I started to the Confederate army on that date, and Potter went with me, and rode the horse." C. C. Dougherty testified: "I think Stephen Hiatt paid Potter a horse and a yoke of oxen and some mules for the six acres," and a small note on witness. "I saw Potter with the horse the last of the year 1860 or first of 1861. I was intimate with Potter, and never heard of Hiatt's owing him anything for the lot." This evidence is not satisfactory, but it tends to show that Mrs. McDougal's memory of the transaction may have been at fault. Her evidence does not, however, trace any of her property into a payment or part payment of the six acres. It is insisted by appellants that, inasmuch as McDougal's evidence shows that $350 of the purchase money of the six acres were paid after she and Hiatt were married, to that extent the land would be community of their marriage. Her evidence does not inform us when the payment of the balance due was made, or how long it was after the marriage. The law requires some degree of certainty in the proof in such a case, — proof that the payment was made out of the community of such marriage. It will not be presumed from the fact that the payment was made soon after the marriage. In this respect the facts are much the same as in the case of Medlenka v. Downing, 59 Tex. 37, where it was held that such a payment of a portion of the purchase money would not be sufficient to show that the payment was made out of the community of the last marriage, even when paid with rents not shown to have accrued during the marriage. We do not find that the court erred in holding that the land in controversy was the community property of Stephen Hiatt and Jane Hiatt.

Appellants assign the following error: "After finding that the land in controversy was community property of Stephen Hiatt and his second wife, Jane Hiatt, and that that portion of the same which belonged to the estate of Jane Hiatt was subject to partition among the heirs, then the court erred in holding that the claim of Robt. Bradford and Jesse Bradford, as pleaded, was not barred by the statute of limitation, Clarissa Hiatt, the wife of Robt. Bradford and mother of Jesse Bradford, having been married in the year 1873, twelve years before the institution of this suit." Clarissa Bradford was one of the children of Stephen and Jane Hiatt, and at the death of her mother inherited one-sixth of her estate in the land; Jesse Hiatt, another child, one-sixth, and Julia, another, one-sixth; their father taking one-half of the same as his community. When Julia died, unmarried and without issue, Stephen took by descent from her one-twelfth of the whole; and Jesse and Clarissa two-sixtieths each; and Loretta, a sister of the half-blood, by Stephen's first marriage, took one-sixtieth of the whole; thus leaving in Stephen, upon the death of Jane and Julia, seven-twelfths of the whole, and in Jesse, Clarissa, and Loretta (Dougherty) the remaining five-twelfths of the land. The land was never the homestead of Jane and Stephen Hiatt. After the death of Stephen Hiatt, he having previously married Jennie Walden, — now Jennie McDougal, — by whom he had two children John and George, in the administration of his estate by one Venters, in 1868, the probate court of Denton county set apart the land in controversy to his surviving wife, Jennie Hiatt, (now McDougal,) and his minor children, Clarissa Hiatt, Jesse Hiatt, John Hiatt, and George Hiatt, "the family then residing on the land." The estate of Stephen Hiatt was insolvent. The record does not show for what purpose the land was so set apart, but, inasmuch as the family were living on the land at the time of the order, it might be presumed that it was done to secure a homestead for them. The evidence of this order was by parol, the records of the court having been destroyed by fire. At this time Clarissa owned, by inheritance from her mother, Jane Hiatt,...