Routh v. Routh

• Decision Date: 21 December 1882
• Docket Number: Case No. 1183.
• Citation: 57 Tex. 589
• Parties: ELIZABETH ROUTH v. W. A. ROUTH??
• Court: Texas Supreme Court

57 Tex. 589

ELIZABETH ROUTH

v.W. A. ROUTH??

Case No. 1183.

Supreme Court of Texas.

Dec. 21, 1882.

APPEAL from Fannin. Tried below before the Hon. John C. Easton.

This was a suit brought by Elizabeth Routh in the year 1871 against the children of Jonathan Routh, deceased, in their capacity as devisees and legatees under his last will and testament, for the recovery of her equal one-half interest in all the property possessed and claimed by the testator at his death, in her right as wife during his life, and the acquisition by him of the said property, by virtue of her community interest therein. During the progress of the suit the plaintiff discontinued as against some of the original defendants, for the reasons, as stated in her pleadings, that adjustments of the interests claimed by them had been satisfactorily agreed on. This litigation was thus narrowed down to her claim against the defendant W. A. Routh, the son of Jonathan Routh by a marriage which. had been consummated between said Jonathan and said W. A. Routh's mother, before the marriage with the plaintiff. W. A. Routh was the devisee under the will of his father, together with the other defendants. Plaintiff, in her last amended petition, alleged that he claimed a certain eighty-acre tract of land therein described, with the improvements thereon situate, and she prayed for a partition thereof and for damages for use, occupation, etc.

The facts developed by pleading and evidence showed that the plaintiff and Jonathan Routh, deceased, intermarried in the state of Illinois in the year 1838 or 1839, each having been before married, and each having children by such former marriages; that they lived together until 1844 or 1845, and never did live together nor in the same state afterwards. Jonathan Routh left his wife and their three children which were born to them during their marriage, in 1844, came to Texas, and returned to his former home in Illinois in the spring of 1845, and remained there until the fall. He again left for Texas, bringing with him the children of his first marriage. The plaintiff's testimony, as well as all the other evidence in the case, shows that the departure of Jonathan Routh from Illinois was intended by him as an abandonment of his wife; that he had told her so before he left, and that she knew it otherwise from his conduct. She stated in her depositions that he made no effort to induce her to accompany him. Whether she desired to remove with him, or intended to follow him, with or without his consent or wish, does not appear. She and her children, at all events, remained at their home, where they continued to reside, and never did remove to Texas. As to the causes which led to the separation between them, the defendants alleged that they consisted of such cruelty on the part of the plaintiff towards the children of Jonathan Routh by his former wife, and towards himself, also such outrages and excesses, as to render their living together insupportable to him. There was evidence tending to sustain those allegations, and also evidence to rebut that which was offered by the defendant on that subject. The evidence plainly showed, however, that from some cause or other, dissatisfaction existed at the time of the separation, on the part of the deceased, concerning his domestic relations; that he intended to separate himself from his family by a removal to Texas, leaving his wife and her children behind him; and that neither he nor his wife contemplated acquiring a joint and common home in this state.

Jonathan Routh married Nancy Thompson in Fannin county, Texas, in the year 1852, with whom he lived as his wife until his death in 1864. The lands in dispute were all acquired subsequent to the date of their marriage and during its existence.

The defendants answered by general denial, and special answer, setting up as a defense that the testator was forced to leave the plaintiff on account of the conduct before referred to, which rendered his living with her insupportable, and that Nancy Thompson had married him in ignorance of the existence of a former wife, and that it was unknown to her, up to the time of said Jonathan's death, that he had, living, another wife. That her marriage and living with him as his wife was in good faith; that she was such in fact and in law; and that her marriage with him was duly celebrated and solemnized under and according to the laws of Texas; that she with said Jonathan had acquired together the land in controversy, and that the plaintiff had contributed nothing whatever towards its acquisition.

The plaintiff excepted to the sufficiency of the answer, and the exceptions were overruled.

The marriage with Nancy Thompson was proved as alleged, and there was no evidence tending to show knowledge on her part concerning the existence of the plaintiff at the time of her marriage in 1852 or afterwards, or that Jonathan Routh had ever been married to her.

The cause was tried before a jury, who rendered their verdict for the defendant, and judgment was rendered accordingly.

The plaintiff appealed, and assigned as error:

1. The overruling of her exceptions to the defendant's answer.

2. The rulings of the court in admitting certain testimony, specified in several bills of exceptions.

3. The giving of certain charges by the court designated as numbers 4, 5 and 6, and in giving an instruction to the jury asked for by the defendant, designated as No. 2.

4. In overruling plaintiff's motion for a new trial.

The several charges referred to in the assignment of errors were lengthy and need not be stated in full.

Richard B. Semple and R. W. Campbell, for appellant.

Throckmorton, Brown & Bro., for appellee.

I. Appellants' counsel rely upon the rules of the common law to determine their rights. If that law should govern they have no claim, for under it no such right ever existed, and consequently it has no rule or principle applicable to this case. It is impossible for the common law to govern a case or determine a right which was never known to arise or exist in common law countries. The common law as applicable to marital rights was never in force in Texas. Bradshaw v. Mayfield, 18 Tex., 29, last paragraph.

II. There can be but one community. Either the first or last wife is entitled. A right in one wife excludes the idea of a right existing in the other.

III. If appellant was not entitled to recover, as against Nancy Routh, the community interest, then the action of Nancy in renouncing that right could confer no rights upon appellant that she did not possess before. This proposition is so clearly correct that we will not consume the time of the court in argument upon it.

We will not present an argument upon the presumptions which would exist in favor of innocence under the circumstances of this case. Every presumption would be indulged in favor of the legality of the marriage with Nancy Thompson. The common law authorizes a presumption of death upon an absence of seven years, but it would be presumed on much shorter time to support innocence. A presumption of divorce would likewise be indulged to protect the innocent party. Carroll v. Carroll, 20 Tex., 731; 1 Bish. Mar. and Div., secs. 432, 453, 455, 457; 15 Tex., 241. Thus we see that every presumption is against the claim of appellant.

The community rights of the husband and wife are founded upon the idea of mutual contributions to the acquisition of the property. 23 Tex., 28. It has been found necessary to preclude all inquiry upon that subject so long as the parties continue to live together. When, however, separation takes place, and the property is the product of the labor of one alone, the rights of the conjugal partners are made dependent upon the rights acquired by innocent third parties, and upon the cause of the separation. It becomes important in such case to ascertain who caused the breaking up of the marriage relation. The innocent must be protected, but the culpable will not be sustained in a demand for participation in the fruits of the industry of the other party.

It is not a matter of surprise that, in the early settlement of Texas, cases like the present should have occurred. The great efforts to induce settlement brought people from almost every state in the Union and many portions of Europe together in this new country. That some men should have taken advantage of the occasion to rid themselves of unhappy domestic ties, and that others should have become indifferent to former obligations, is natural. The unmarried women of the new population being innocent of a knowledge of these circumstances, entered into marriages in good faith, and throughout a life-time were good and faithful wives and mothers. Such was the case with Nancy Thompson, whose innocence is one of the clearest propositions in the case. The moralizing of counsel upon the protection due to society is illy applied to the facts of this case. The implied imputation of being a mistress is sadly out of keeping with the facts.

Nancy Thompson was ignorant of the existence of any impediment to her marriage with Jonathan Routh, and in good faith and innocence entered into marriage with him under the forms of law. The counsel call this a guise marriage, but the law, more just and charitable, terms it a putative marriage.

IV. What are the rights of a wife who in good faith enters into such a marriage, and during the marriage relation discharges all of the duties of wife and aids in the acquisition of property? Counsel claim that hers are only the rights of a mistress, who with knowledge of a former wife and in disregard of the laws of God and man, enters into an illicit cohabitation. Fortunately such is not the law of this state.

We have ample adjudications in Texas upon this subject, but we refer the court to Clendening v. Clendening, 3 Mart. (La.), N. S., 438, in which the rights of the putative wife are clearly defined.

In our own state we have a number of decisions upon...