Morgan v. Morgan

• Decision Date: 15 November 1892
• Citation: Morgan v. Morgan, 21 S.W. 154, 1 Tex.Civ.App. 315 (Tex. App. 1892)
• Parties: MORGAN v. MORGAN et al.
• Court: Texas Court of Appeals

21 S.W. 154

MORGAN v.MORGAN et al.

Court of Civil Appeals of Texas.

November 15, 1892.

Appeal from district court, Parker county, J. W. Patterson, Judge.

Action of trespass to try title brought by Susan H. Morgan and others against Laura F. Morgan for the recovery of an undivided community interest in the estate of John B. Morgan.Judgment for plaintiffs.Defendant appeals.Reversed.

The other facts fully appear in the following statement by HEAD, J.:

AppelleeSusan H. Morgan and John E. Morgan were married in the state of Missouri in the year 1848, and removed to Parker county, in this state, in 1859, where they resided until the death of said John E. Morgan, in November, 1887.In 1870, however, they ceased to live together as husband and wife, and continued to live separate and apart from each other from that time.In 1876 the said John E. Morgan, after having been refused a divorce in this state, and without ever having acquired a domicile therein, obtained a decree of divorce from his said wife in the probate court of Salt Lake county.In said last-named suit for divorce the said Susan H. Morgan filed a plea to the jurisdiction of said court, she being at the time a citizen of this state, and never at any time having been in, or acquired a domicile in, said Utah territory.After having obtained the Utah divorce, as above set forth, in the fall of 1876, the said John E. Morgan and appellantLaura F. Morgan were married in Tarrant county, in this state.At the time of this last marriage the said John E. Morgan owned 160 acres of land, which is a part of the property in controversy herein; and after such marriage he and appellant accumulated the remainder of the property in controversy, or, at least, a large part thereof.The cause was submitted in the court below to the jury upon special issues, and, upon their verdict, judgment was rendered declaring the Utah divorce to be a nullity, and adjudging all of the property in controversy to the lawful wife, Susan H. Morgan, and appelleeW. B. Morgan, who was the only child of said John E.; and from this judgment this appeal is prosecuted.

John T. Harcourt, for appellant.Nicholson & Robinson for appellees.

HEAD, J., (after stating the facts.)

Appellant's seventh assignment of error calls in question the action of the court in admitting evidence as to the actual residence of J. E. Morgan in this state, for the purpose of attacking the decree of divorce rendered in Utah, the contention being that the judgment of a sister state or territory cannot be attacked collaterally.That such judgment can be collaterally attacked in this state by showing that the court which rendered it was without jurisdiction is too well settled to require discussion.Chum v. Gray, 51 Tex. 114;Redus v. Burnett, 59 Tex. 581;Norwood v. Cobb, 24 Tex. 554.We are also of opinion that the court did not err in holding the Utah divorce to be an absolute nullity.The verdict of the jury established that John E. Morgan was never at any time a citizen of Utah territory, and never at any time, either before or after the granting of the decree, acquired a domicile therein.Without undertaking to discuss the reasons upon which the decisions are based, we think it will be found that an almost unbroken line of decisions in the different states establishes the invalidity of a decree of divorce where neither of the parties is domiciled in the country granting the decree.2 Black, Judgm.927; 2 Freem.Judgm.580.

The court below, proceeding upon the idea that, if the Utah divorce was a nullity, the second marriage of John E. Morgan would also be a nullity, and would deprive the appellant, Laura F. Morgan, of all interest in the property acquired while she was living with him under such marriage, refused to admit evidence that the said Laura F. entered into this marriage in good faith, believing that the said John E. Morgan had been legally divorced from his former wife; and also refused evidence that the said Laura F., by her prudent management and services, contributed to the acquisition of the property in question, believing herself to be a lawful wife; and, in entering its decree, adjudged that she was not entitled to any part of such property; and the correctness of this action of the court presents the most serious question for our consideration.The status of property acquired by a man and woman living together as husband and wife without having been lawfully married has been a subject of doubt and litigation almost from the time Texas became an independent republic.At an early day it was settled that, where a head-right certificate was issued to a man thus situated as the head of a family, the woman was entitled to a one-half interest therein, notwithstanding the man had a lawful wife and family in another state, and the woman knew this fact.In other words, the fact that the woman was living in open adultery with a man did not deprive her of the right to claim a community interest in the certificate granted in his name or to his heirs.Babb v. Carroll, 21 Tex. 766;Lewis v. Ames, 44 Tex. 345;Yates v. Houston, 3 Tex. 433.But the direct question involved in this controversy, so far as we are aware, has never been authoritatively settled in this state, although frequent allusions have been made to it.In Carroll v. Carroll, 20 Tex. 743, Chief Justice Hemphill uses this language: "I have not considered the strong claim which the defendant, Susan, independently of her right as a lawful wife, might have urged to a community share of the property.She was his wife de facto.By her labors and toils she contributed to the accumulation of the estate.At the time of their marriage they were in a state of indigence; their property not amounting to more than $150.Their gains were the result of their joint industry, thrift, and economy, and she is reasonably entitled to a share of the proceeds."In Zimpelman v. Robb, 53 Tex. 283, the question was alluded to as not being necessary to be decided.In Routh v. Routh, 57 Tex. 600, in the opinion adopted by the court, the question is expressly waived, as not being necessary for its decision, but, in the separate opinion of Associate Justice Bonner, (on page 602,)he uses the following language: "I am of the opinion that, under the facts and circumstances of this case, Nancy Thompson, in right of her putative marriage with John Routh, was entitled to one half of the property acquired during that marriage in the nature of a partnership of acquests and gains.I am further of the opinion that only the remainder of the property of that marriage, or one half of the whole, could constitute the net community property of Jonathan Routh and his legal wife, Elizabeth Routh, plaintiff below, and that all to which the latter should in any event be entitled would be...